jicJUA^-e 


n^a^-  nH^ 


A  TREATISE 


ON 


HOMESTEAD  AND  EXEMPTION 


BY 


RUFUS  WAPLES,  LL.  D., 

Author  of  a  Treatise  on  Attachment  and  Garnishuent, 

A  Treatise  on  Proceedings  In  Rem,  a  Manual 

OM  Parliamentary  Practice,  ETa 


"The  family,  oldest  of  Institutions,  perpetually  reproduces  the  ethical  history 
of  man,  and  continually  reconstructs  the  constitution  of  society.  All  students 
of  sociology  should  grasp  this  radical  truth.'"  Prof.  Henry  B.  Adanis,  ofJohau 
Hopkins  University. 

"  Family  homes  are  the  cells  that  compose  the  body  politic." 


CHICAGO 

T.  H.  FLOOD  AND  COMPANY 

1893 


I 


Copyright,  1893, 

BY 

RUFUS  WAPLES. 


^ 


STATE  JOURNAL  PRINTING  COMPANY, 

Printers  and  Stereotypkrs, 

madison,  wis. 


PREFACE. 


When  planning  the  treatment  of  my  threefold  subject,  I 
did  not  design  so  bulky  a  volume  as  this.  In  following  the 
plan  of  the  principal  topic,  as  shown  in  the  accompanying  dia- 
gram, I  have  treated  settled  questions  with  brevity  by  stating 
the  points  and  citing  the  authorities ;  but  in  dealing  with  the 
numerous  new  questions  arising  in  the  last  fifteen  years,  es- 
pecially those  out  of  the  ordinary,  I  have  found  it  necessary 
to  present  positions  more  elaborately,  to  give  the  statutes 
with  the  constructive  decisions,  and  sometimes  to  follow  them 
with  a  running  commentary.  The  purpose  has  been  to  reduce 
this  very  statutory  subject  to' a  degree  of  system,  so  far  as  the 
several  state  statutes  approach  uniformity.  To  effect  this, 
and  yet  to  present  the  law  as  it  is  (and  not  as  one  may  con- 
ceive that  it  should  be),  has  been  a  task  so  difficult  that  it 
could  not  be  accomplished  without  room  to  work  in.  If  I 
have  partially  accomplished  it  so  as  to  meet  the  approval  of 
those  of  the  profession  who  are  best  informed  as  to  the  com- 
plexity of  the  subject,  I  shaU  not  regret  the  years  spent  upon 
it,  or  further  apologize  for  the  length  of  this  branch  of  the 
subject. 

Chattel  exemption,  as  well  as  homestead,  has  given  the 
books  a  great  accumulation  of  cases.  Both  topics  are  well 
treated  in  the  extensive  work  of  Judge  Thompson,  following 
the  pioneer  treatise  of  Mr.  Smyth ;  and  as  they  are  kindred 
subjects,  I  have  given  the  exemption  of  personalty  such  space 
as  it  seemed  to  require.  The  chapter  on  the  homestead  laws 
of  the  United  States  completes  the  treatise. 


r:fA  TftHI  A  A 


IV  PREFACE. 

By  having  the  statutes  cited  in  connection  with  decisions 
turning  upon  them  the  profession  will  readily  see  the  bearing 
of  judicial  constructions,  and  will  understand  that  many  of  the 
seeming  conflicts  are  attributable  to  legislation  rather  than  to 
the  courts.  There  are  differences,  however,  which  are  not 
chargeable  to  the  statutes,  for  which  the  author  is  not  respon- 
sible. What  further  I  have  to  say,  of  an  explanatory  charac- 
ter, is  relegated  to  the  Introduction. 

Homestead  is  a  growing  subject,  of  great  importance  to  the 
whole  country,  and  especially  to  the  states  and  territories 
which  have  statutes  upon  it  — and  nearly  all  have  them.  Not 
only  debtors  and  creditors,  wives  and  widows  and  children, 
but  whole  communities  are  vitally  interested  in  the  conserva- 
tion of  family  homes.  The  vast  litigation  on  the  general  sub- 
ject forces  itself  upon  the  attention  of  the  Bench  and  Bar  of 
the  whole  country,  to  whom  this  treatise  is  now  respectfully 

dedicated  and  submitted. 

E.  W. 
Ajstn  Arbor,  Mich. 


ANALYTICAL  DIAGRAM/ 


HOMESTEAD. 


Conditions. 


(of  husband, 
of  wife  under  some  circumstances 
of  widow  with  children, 
of  otlier  householder  supporting  de- 
pendents. 
fby  leasehold, 
by  freehold  jjf/f^'^^IVTaf^ 
by  equitable  title. 

{by  declaration, 
by  record  in?  deed, 
by    inscribing    "Homestead' 
margin  of  the  deed. 

factual, 
intentional,  with  preparations,  in  some 
states, 
with  temporary  absence. 
■D       J  S  varies  in  acres  from  40 


for  years, 
for  life. 


on   the 


Limitations 


Quantitative. 


Urban . 


Restraints. 


j  by  deed  of  sale 


\   to  MOO. 

I  varies  from  one  lot  to 
one  acre. 
(five   acres    in    small 
towns  of  one  state.) 

.Monetary -{  varies  from  $500  to  $5,000. 

■"by  married  owner 
alone. 

by  husband  and  wife 
.  ...        ..  ,  >j ,  iicci.  .ji  o^io      without  her  acknowl- 

ofAhenatton. ...  -j  by  mortgage  . . "    edgment. 

during  the  widow's  es- 
I    tateand  thechild- 
l,  ren's  minority. 
r,  .,.,.,.       i  by  constitution, 

fby  express  mhibition]  ^^^  statute. 

f  by  provisions  continu- 
I    ing  homestead  to  the 

marital  survivor. 
I  by  provisions  continu- 
.by  implication.  \    ing  homestead  to  the 
minor  children, 
by  any  absolute  dispo- 
sition of   the  home- 
stead by  law. 
with  vendor's  lien, 
without  vendor's  lien, 
borrowed,  in  some  states. 

I  with  recorded  lien,  in 
J    some  states. 


Liabilities  . 


of  Testamentary 
Disposition. .. 


for  Purchase 
Money 


for  Improve- 
ments  


to  mechanics. 

I  to  laborers. 
.  for  materials. 


without  recorded  lien. 


[  in  some  states. 


ito  the  homestead  law. 
to  some  designated  date, 
to  purchase, 
to  recording  declaration 
to  occupancy. 


f  conventional 


for  Liens 


by  husband  and  wife 
jointly. 

by  owner  alone  for  cer- 
tain classes  of  debts, 
by  unmarried  benefi- 
J.  {  ciary. 

by  operation  of  law. 
[dormant,  but  ultimately  enforceable. 


for  Fiduciary       I  of  public  officer. 

Obligation ■<  of  guardian  or  other  trustee. 

I  of  attorney  at  law. 


for  Tort. 


I  bj'  the  owner. 
■  I  by  his  wife,  in  some  states. 


,  Exemptions 


(  of  the  state. 

for  Taxes -{of  the  county  or  city. 

( for  school  purposes. 

(  by  attachment. 
(from  forced  sale.  <  by  execution. 
j  »  (  by  other  process. 

till  the  exhaustion  of  other  property 
mortgaged  with  it. 


[from  foreclosure  i 


*  Subject  to  exceptions  in  several  states. 


TABLE  OF  CONTENTS. 


Keferences  are  to  pages. 


Table  of  Cases 

. 

. 

. 

.    xvii 

Introduction xcvi' 

CHAPTER  L 

LEADING    PRINCIPLES. 

§1- 

The  Qualified  Family  Residence       ......        1 

2. 

Policy  —  To  Conserve  Homes     . 

3 

3. 

The  Property  Exempted    . 

(1)  Property  Habitable 

(2)  Property  Occupied  by  a  Family 

5 
5 
6 

4. 

Exemption  from  Ordinary  Debts 

8 

5. 

Notice  to  Creditors  Essential 

.       10 

6. 

States,  as  Creditors    .... 

.       12 

7. 

Liability  for  Liens     .... 

14 

8. 

Prevention  of  Property-Indebtedness 

16 

9. 

The  Governing?  Law 

19 

10. 

Summary  of  Leading  Principles 

.       21 

CHAPTER  IL 

CONSTRUCTION. 

§1. 

Plain  Statutes 24 

2. 

Words  —  How   Construed 

25 

3. 

Uniform  Operation   .... 

27 

4. 

Liberal  Interpretation 

28 

5. 

Policy  —  How  Far  to  be  Considered  . 

33 

6. 

Charitable  Grounds  .... 

36 

7. 

Common  Right           .... 

38 

8. 

Ruling  to  Prevent  Fraud  . 

42 

9. 

Restraint  Upon  Alienation 

43 

10. 

Law  of  Wife's  Property     . 

44 

11. 

Statutes  Not  Extended  by  Construction 

47 

12. 

Rival  "  Equities  " 

50 

13. 

Conflicting  Interpretations 

51 

14. 

Constitutional  Directions  .... 

52 

Vlll 


TAJILE    OF    CONTENTS. 


CHAPTER  HI. 


FAMILY  HEADSHIP. 


§1. 

2. 
3. 
4. 
5. 


8. 

9. 
10. 
11. 


Tlie  Constitution  of  the  Family 
Tiie  Headship  of  the  Husband  . 
United  Headsliip  of  Husband  and  Wife 
Desertion  bj^  the  Wife 
Divorce ;  Effect  on  Homestead 
Divorce ;  Forfeiture  by  Divorced  Party 
Acquisition  by  Widower  or  Widow  . 
Unmarried  Beneficiary      .         .         . 
Lack  or  Loss  of  Family 
Claiming  After  Loss  of  Family  . 
Comment  ...... 


57 
60 
63 
66 
67 
73 
75 
79 
83 
88 
98 


CHAPTER  IV. 

OWNERSHIP. 

5  1.  Title  Not  Conferred  by  Law 

2.  Property  Qualification  of  tlie  Claimant 

3.  Character  of  the  Title 

4.  Leasehold  and  Various  Titles  to  Parcels 

5.  Life  Estate        ..... 

6.  Equitable  Title 

7.  Titles  of  Husband  and  Wife 

8.  Mutual  Interest  of  Husband  and  Wife 

9.  Title  Void  or  Fraudulent  . 

10.  Joint  Tenancy  and  Tenancy  in  Common 

11.  Undivided  Interest  —  Co-tenancy 
13.  Exemption  of  Undivided  Interest 
13.  Co-tenancy  of  Husband  and  Wife 
14  Partnership  Property 


102 
103 
108 
113 
114 
117 
120 
125 
126 
131 
134 
13S 
140 
148 


CHAPTER  V. 

DEDICATION. 

1.  Selection  of  a  Homestead 146 

2.  Selection  of  Two  or  More  Tracts 149 

3.  Platting 154 

4.  Form  of  Land  Selected 158 

5.  Declaration:  Methods 160 

6.  Declaration :  Requisites 163 

7.  Notification 167 

8.  Recording 169 


CHAPTER  VL 

OCCUPANCY, 

1.  The  Condition  Stated         .... 

2.  Declaration  and  Occupancy  as  Conditions 

3.  Declaration  Directory — Occupancy  Essential 


175 

176 

178 


TABLE    OF    CONTENTS. 


IX 


§  4.  Occui)ant  Claiming  Without  Declaration 

5.  Principal  Use     . 

6.  Subordinate  Uses 

7.  Intention  to  Occupy 

8.  Intent  Subsequently  Realized 

9.  Retroaction 

10.  Retroaction  :  Building  Material 

11.  Inherited  Homesteads 
13.  Legal  Possession  as  Occupancy 

CHAPTER  VII. 

LIMITATIONS  OF  THE    VALUE  AND   QUANTITY   OF  REALTY. 

g  1.  Value  and  Quantity  . 

2.  Monetary  Limit  Only 

3.  Increase  of  Value  After  Acquisition 
4  Quantitative  Limit  Only    . 

5.  Indivisible  and  Excessive  Property 

6.  Extension  of  Corporate  Bounds 

7.  What  Law  Governs  Limits 

8.  Exemption  of  Real  and  Personal  Property 
Table  of  Monetary  Limitations 


179 
182 
185 
189 
193 
199 
202 
204 
205 


208 
210 
216 
221 
223 
224 
227 
229 
231 


10. 


CHAPTER  VIIL 

EXEMPT  BUSINESS  PLACES. 

Appurtenances           .........  232 

Business  Houses  Not  Appurtenant     ......  235 

Dwelling  and  Business  Houses  as  One  Homestead  Within  the 

Maxinmm 238 

Means  of  Family  Support 240 

Dual  Homesteads  —  "  Business  Homesteads  "    .         .         .         .  242 

Dual  and  "Business  Homesteads  "      ......  246 

"  Business  Homesteads  "  —  Increase  of  Exemption    .         .         .  249 

Alternate  Homesteads        ........  250 

Business  Uses  as  Indicia    ........  251 

Several  Business  Callings 254 


CHAPTER  IX. 

QUASI-ESTATE   OF  HOMESTEAD. 

!  1.  Qualification  of  the  Legal  Title 

2.  Defeasible  but  Indeterminate  "  Estate  " 

3.  Similar  to  Dower       .... 

4.  Right  of  Occupancy  Called  an  "  Estate  " 

5.  The  Right  and  the  EstateCompared  . 

6.  The  Right  Not  Strictly  an  Estate 

7.  New  Features  but  Not  New  Title 

8.  Trust  Estate 

9.  Qualified  Title 

1 0.  Exemption  and  "  Estate  of  Homestead  " 


256 
258 
260 
262 
263 
265 
268 
270 
270 
273 


S:  TATJLK    OF    CONTENTS. 

CHAPTER  X 

LIABILITIES. 

§  1.     Debts  Prior  to  the  Law 276 

2.  Debts  Prior  to  Purchase  and  Occupancy 283 

3.  Debts  Prior  to  Filing  tlie  Deed 287 

4.  Debts  Prior  to  Designation  of  Homestead           ....  293 

5.  Debts  by  Written  Contract 294 

6.  Dormant  Liens 296 

7.  Attacliment  Liens 303 

(1)  Claiming  Homestead  After  Attachment  ....  303 
(3)  Attaching  After  Homestead  Has  Been  Established  .         .  307 
(3)  Effect  of  the  Perfected  Attachment  Lien  Upon  the  Home- 
stead        318 

8.  Tort 333 

9.  Fiduciary  Debts 336 

10.    Taxes 327 


CHAPTER  XL 


LIABILITY  FOR  PURCHASE-MONEY  AND  IMPROVEMENTS, 


5  1.  Exemption  Inapplicable    ..... 

2.  When  no  Lien  is  Recognized     .... 

3.  Money  Borrowed  to  Pay  the  Price  —  Subrogation 

4.  Borrowed  and  Purchase-money  Distinguished  . 

5.  Notes  for  Price  in  Third  Hands 

6.  Marshaling  Accounts,  as  to  Homestead 

7.  Mortgage  for  the  Price       ..... 

8.  Payment  Essential  to  Ownership        .         .         . 

9.  Price  Returned  when  Title  Fads 

10.  Insurance  and  Voidable  Title     .... 

11.  Improvements 


331 
333 
337 
341 
346 
350 
353 
354 
357 
359 
361 


CHAPTER  XII. 


RESTRAINT  OF  ALIENATION, 

5  1.  Restraint  and  Exemption  Relative 

2.  Sale  by  Husband  and  Wife 

3.  Trust  Deed  by  Husband  and  Wife 
•  4.  Mortgage  by  Husband  and  Wife 

5.  No  Alienation  by  Husband  Alone 

6.  Sales  Subsequently  Validated    . 

7.  Wife's  Right  Relative  to  Sales   . 

8.  Estoppel  by  Sole  Deed 

9.  Conveyance  by  Husband  to  Wife 

10.  Incumbrance  Inhibited 

11.  Interests  of  Non-owning  Beneficiaries 
13.  Conveyance  to  Pay  Privileged  Debts 


370 
373 
375 

377 
383 
387 
389 
393 
395 
393 
401 
403 


TABLE    OF   CONTENTS. 


XI 


CHAPTER  XIII. 

RESTRAINT  OF  ALIENATION  —  CONTINUED. 

§  1.  Restraint  —  As  to  Excess 

2.  Excess  First  Exhausted     .... 

3.  Sale  of  Interests  in  Homestead  Property   . 

4.  Assignment  of  Homestead 

5.  Conveyance  Strictly  Construed 

6.  Wife's  Acknowledgment  —  How  Construed 

7.  Wife's  Joinder  —  In  General 

8.  Leasing,  as  Alienation        .... 

9.  Exchange  of  Homesteads 

10.  Proceeds  for  Investment  in  a  New  Home 

11.  Proceeds  Held  for  General  Purposes 


405 
410 
414 
417 
419 
423 
429 
433 
435 
433 
443 


CHAPTER  XIV. 

RESTRAINT  OF  TESTAJLENTARY  DISPOSITION. 

1.  How  Restrained 446 

2.  Devise  is  Not  Alienation 447 

3.  Authorization   to  Sell 450 

4.  Deed,  Will  and  Claim 453 

5.  Testamentary  Disposition  Inhibited 456 

6.  Wilis  Consistent  with   Homestead  Rights        ....  461 

7.  Willing  the  Homestead  and  More  —  Election  When  Necessary  .  463 

8.  Spirit  of  Exemption  Laws  —  Election 465 


§1. 
2. 
3. 

4. 
5. 
6. 

7. 


10. 
11. 
12. 
13. 


CHAPTER  XV. 

SALE,   "WITH  HOMESTEAD  USE  RESERVED. 

By  Owner  —  Generally 469 

By  the  Owning  Husband's  Sole  Deed 472 

Reservation  of  Use  Necessary      .         .                ....  475 

Restraint  and  Exemption  —  When  Correlative        .         .         .  476 

Sale  by  Solvent  Owner  Before  Selection 478 

No  Sale  by  Insolvent  Debtor 481 

Sale  by  Husband  and  Wife 484 

Execution    Sale .  486 

Sale  of  the  Reversion          ........  488 

Sale  by  Administrator       ........  490 

No  Sale,  During  Homestead  Occupancy,  by  Administrator       .  493 

The  Fee  of  Homestead  Not  an  Asset 494 

Comment           ..........  496 


CHAPTER  XVL 

FRAUD. 

§  1.     Fraudulent  Acquisition     ........     499 

2.  Buying  with  Another's  Money 502 

3.  Exchanging  Goods  for  a  Homestead  when  They  Have  Not  Been 

Paid  for 504 


Xll 


TABLE    OF    CONTENTS. 


5. 

6. 

7. 

8. 

9. 
10. 
11. 
12. 
13. 
14. 
15. 


9. 
10. 
11. 
12. 


Fraudulent  Selection  from  Liable  Property 
Tlie  "  Policy  "  to  "  Secure  "  Homesteads  . 
Fraudulent  Conveyance —  Creditors  Disinterested 
Remote  Interests  in  Fraudulent  Conveyances    . 
Conveyances  to  Creditors'  Prejudice 
Liability  to  Creditors         ..... 


.  508 

.  512 

.  513 

.  515 

.  517 

.  521 

Selling  Liable  Property 523 

Fraudulent  Liens       .........  526 

Fraudulent  Transfer  to  Wife 529 

Effect  of  Setting  Aside  a  Fraudulent  Transfer  ....  531 

Effect  of  Forfeiture,  as  to  Creditors 534 

Comment 536 

CHAPTER  XVIL 

WAIVER. 

Inalienable  Rights 539 

Pre-agreement  to  Waive 540 

Inchoate  Rights 543 

Rights  of  Dower  and  Homestead 544 

No  Waiver  of  Others'  Rights 545 

Ol^tional  Exemption           . 547 

Special  Waiver 548 

Absolute  Waiver  by  Mortgage 549 

Lien  Not  Waived  by  Taking  Security 552 

Usury  Affecting  Wa  iver 553 

]\Iode  of  Release 554 

Pleading  Waiver 556 

CHAPTER  XVIIL 


ABANDONMENT. 

Permanent  Removal  .... 

Temporary  Removal  .... 

Removal  to  a  New  Home  .... 
Leasing  the  Premises         .... 
Cessation  of  Ownership     .... 
Family  Headship  Relative  to  Abandoament 
Effect  on  the  Wife's  Rights 
Effect  on  the  Widow's  Rights    . 


CHAPTER  XIX. 
RIGHTS  OP  THE  SURVIVING  SPOUSE. 

1.  Continued  Right  of  Occupancy. 

2.  Distributive  Share     . 

3.  Community  Property 

4.  Title  Vested  in  Survivor    . 

5.  Separate  Property     . 

6.  Widower's  Riglits  in  General 

7.  Widow's  Rights  as  to  Conveyance 

8.  Relative  to  Insurance  on  Homesteads 


558 
5fi2 
567 
571 
575 
580 
582 
584 


589 
592 
594 
598 
GOO 
605 
607 
608 


TABLE    OF   CONTENTS. 


Xlll 


§1. 
2. 
3. 
4. 
5. 


CHAPTER  XX. 

THE  widow's  homestead. 

Charactoristics 611  ■ 

Ante-nuptial  Contract 612 

Dower  and  Homestead      .         , 614 

Dower  or  Homestead 618 

The  Widow's  Occupancy  ........  621 

Relative  to  Heirs 625 

Relative  to  Alienation         ........  630 

Money  or  Realty  in  Lieu  of  Homestead      .....  634 

In  General 636 

CHAPTER  XXI. 

THE  children's  HOMESTEAD. 

The  Nature  of  the  Benefit 

Selection  After  the  Father's  Death 

Minors  as  Litigants    ........ 

Rents  and  Profits       ........ 

Relative  to  Indebtedness    ....... 

Necessitous  Children 

Partition 


643 
645 
648 
650 
651 
654 
655 


§  1- 
2. 
3. 
4. 
5. 
6. 


10. 
11. 
12. 
13. 
14. 
15. 


CHAPTER  XXIL 

ALLOTMENT  TO  THE  DEBTOR. 

Statutory  Provisions 


The  Debtor's  Application  . 
The  Sheriff's  Duty  Before  Sale  . 
The  Creditor's  Contesting  Affidavit 
Confirmation  by  the  Court 
Costs  Impairing  Contract 


CHAPTER  XXIIL 

PLEADING  AND  PRACTICE. 

Ordinary  Remedies    .... 

Parties  —  Husband  and  Wife     . 

The  Wife  as  Sole  Plaintiff 

The  Wife  as  Sole  Defendant 

Minor  Children  as  Parties 

The  Widow  as  a  Party 

Application  for  Homestead 

Probate  Oi'ders  Setting  Off  Homestead 

Probate  Orders  to  Sell  Homestead     . 

Administratoi-"s  Suit  as  to  Creditors 

Relative  to  Foreclosure 

Equity  Rule  as  to  Order  of  Sale 

Statutory  Rule  as  to  Order  of  Sale     . 

Claiming  Before  Execution  Sale 

The  Preferable  Practice  as  to  Claiming: 


661 
665 
668 
673 
675 
677 


681 
683 
687 
690 
692 
695 
697 
702 
706 
710 
714 
723 
726 
729 
733 


Jviv 


TABLE    OF    CONTENTS. 


^jj  1().  Execution  as  to  Occupancy 

17.  Pleading  in  Attachment  Suits    . 

18.  Effect  of  Not  Pleading      . 

19.  Rulings  on  Questions  of  Evidence 

20.  Injunction  Against  Sale     . 

21.  Segregation  and  Other  Proceedings  Before  Sale 

22.  Judgment  and  Costs  an  Entirety 


738 
741 
746 
749 
752 
755 
758 


CHAPTER  XXIV. 

EXEMPTION   OF  PERSONALTY. 

^  1.  Differentiation  of  Homestead  and  Chattel  Exemption        .         .  763 

2.  Interpretation  of  Statutes  .         .        ,.         ,         .         .         .         .  764 

3.  What  Law  Applicable 766 

4.  The  Right  Absolute  or  Conditional 768 

5.  Who  May  Claim 770 

6.  How  to  Claim 776 

7.  When  to  Claim 777 

8.  The  Officer's  Duty 779 

9.  Limitations        ..........  782 

10.  Money  in  Lieu  of  Chattels  .         .         .         .         .         .         .784 

11.  Chattels  in  Lieu  of  Homestead  . 785 

12.  Chattel  Exemption  to  Widows 787 


CHAPTER  XXV. 

THINGS  EXEMPT. 

§  1.  Household  Goods       .... 

2.  Furniture  of  Hotels,  Boarding-houses,  etc. 

8.  Clothing,  etc.,  Worn  on  the  Person 

4.  Tools  of  Mechanics  and  Others  . 

5.  Machinery  .... 

6.  Printing  Presses,  Types  and  Material 

7.  Wagons  and  Other  Vehicles 

8.  Domestic  Animals 

9.  Things  Needed  in  Busmess ;  Stock  in 

10.  Merchants'  Stock  in  Trade 

11.  Crops  and  Provisions 

12.  Books,  Pictures,  Musical  Instruments. 


Trade 


etc.,  Outfits  of  Fishermen 


and  Miners,  etc.,  Specially  Exempted 


791 
793 
795 

796 
801 
802 
803 
806 
811 
813 
815 

818 


CHAPTER  XXVL 

INCORPOREAL  THINGS  AND   MONEY. 

§  1.  Exemptible  Interests 

2.  Wages  of  Laborers  and  Others  . 

3.  Wages,  Salaries  and  E  irnings    . 
4  Choses  in  Action        .... 

5.  Set-off  Against  Exempt  Choses  in  Action 

6.  Money  Deposited        .... 

7.  Fire  Insurance  Money 


822 
823 
825 
828 
829 
834 
835 


TABLE  OF  CONTENTS. 


XV 


§  8.     Life  Insurance  Money        ........  836 

9.     Pension  Money  and  Its  Investment    ......  887 

10.  Pension  IMoney  in  Transit  .......  840 

11.  The  United  States  Pension  Act:  Whether  it  Exempts  Accumu- 

lations from  the  Money  .......  842 

CHAPTER  XXVII. 

EXEMPTION   ENFORCED. 

§  1.     Debtor's  Schedule 847 

2.  Schedule  and  Appraisement       .......  858 

3.  Appraisement  of  the  Widow's  Allowance         ....  856 

4.  Remedies  for  Wrongrul  Levy     .......  857 

5.  Damages  Dependent  on  Legality  of  Claim  for  Exemption         .  861 

6.  Replevin    ...........  868 

7.  Burden  of  Proof 864 

8.  Laches  and  Passive  Waiver        .......  866 

9.  Waiver  in  Promissory  Notes      .......  869 

10.  Notice  —  Rank  of  Creditors 870 

11.  Mortgage,  Relative  to  Waiver 872 


§  1- 
2. 
3. 
4. 
5. 


10. 


CHAPTER  XXVIIL 

EXEMPTING  ATTACHED   CHATTELS. 

Claiming  Before  Judgment        .... 

Attachment  and  Execution  Different  as  to  Claiming 

Effect  of  Judgment  Upon  Attachment 

Conventional  Waiver 

Sale  Pendente  Lite     .... 

Garnishment  in  Foreign  Jurisdiction 

Garnishment  and  State  Comity 

Garnishee's  Disclosure  in  Foreign  Jui-isdictiou 

Railroad  Company  Garnishee  —  Disclosure 

Nou-residents,  as  to  Chattel  Exemption     . 


882 
885 
886 
888 
892 
896 
898 
900 


CHAPTER  XXIX. 

EXEMPTION  DENIED  IN  CERTAIN  SUITS,   ETC. 

1.  Suits  Against  Partnerships 

2.  Partner's  Share  Held  Liable 

3.  Partner's  Share  Held  Exemptible 

4.  Suits  for  Antecedent  Debts,  etc. 

5.  Suits  for  Purchase-money 

6.  Actions  Ex  Delicto 

7.  Fraudulent  Concealment. 

8.  Fraudulent  Sale 

9.  Fraudulent  Assignment     . 


903 
905 
907 
909 
910 
913 
910 
918 
921 


XVI  TABLE    OF    CONTENTS. 


CHAPTER  XXX. 


FEDERAL  HOMESTEADS. 

§  1.  Distinctive  Features 924 

2.  Beneficiaries 926 

3.  Entry  — Wliat  Land  Open 929 

4.  Application  and  Settlement        .......  932 

5.  Soldiers'  and  Sailors'  Homesteads      ......  934 

6.  Executive  Acts 936 

7.  Judicial  Action 940 

8.  Settlers' Rights  Relative  to  Railroads 943 

9.  Alienation  Inhibited 946 

10.  Incumbrances 950 

11.  Title 953 


TABLE  OF  CASES. 


References  are  to  pages. 


Aaron  v.  The  State,  37  Ala.  lOG :   81. 
Abbott  V.  Abbott,  97  Mass.  136:  259, 
585. 
V.  Creal,  5G  la.  175 :  423. 
V.  Cromartie,  72  N.  C.  548 :  385, 

480,  614,  618,  730. 
V.  Gillespy,  75  Ala.  180 :  673.  858, 
861. 
Abell  V.  Latlirop,  47  Vt.  375  :  402.  472. 
Abercrombie  v.  Alderson,  9  Ala.  981 : 

83,  97,  775,  798. 
Abernathy  v.  Whitehead,  69  Mo.  30 : 

289,  515. 
Abney  v.  Pope,  53  Tex.  288 :  403. 
Abraham  v.  Davenport,  73  la.  Ill : 

799. 
Abrahams  v.  Anderson,  80  Ga.  570 : 

824. 
Achilles  v.  Willis,  81  Tex.   169 :  185, 

233. 
Acker  v.  Alex.  etc.  E.  Co.,  84  Va.  648 : 
557. 
V.  Trueland.  56  Miss.  30 :  149. 
Ackley  v.  Chamberlain,  16  Cal.  182 : 
177,  183,   184,   211,  212,  235, 
310,  744. 
Adair  v.  Hare,  73  Tex.  273 :  596,  657. 
Adams  v.  Abernathy,  37  Mo.  196  :  561. 
V.  Adams,  46  la.  630:  619. 
V.  Bachert,  83  Pa.  St.  524 :  542. 
V.  Beale,  19  la.  61 :  269,  330,  402, 

684. 
V.  Bushey,  60  N.  H.  290 :  879. 
V.  Cowherd,  30  Mo.  458 :  912. 
V.  Dees,  62  Miss.  354 :  528. 
V.  Edgerton,  48  Ark.  419:  518. 
V.  Holcombe,  1  Harper  Eq.  202 : 
646. 


Adams  v.  Jenkins,  16  Gray,  146 :  129, 

146,  346. 
Adger  v.  Bostick,  12  S.  C.  64 :  407. 
Adrian  v.  Shaw,  82  N.  C.  474 :  480. 
Agnew  V.  Adams,  26  S.   C.  101 :  157, 
279,  2e0. 
V.  Walden  (Ala.^,  10  So.  224:  868, 
870.  885. 
Aiken  v.  Ferry,  6  Saw.  79 :  942. 

V.  Gardner,  107  N.  C.  236 :   673. 
677. 
Aikin  v.  Watson,  24  N.  Y.  482 :  824. 
Airey  v.  Buchanan,  64  Miss.  181 :  528. 
Akin  V.  Geiger,  52  Ga.  407 :  77,  455. 
Alabama  Conference  v.  Vaughan,  54 

Ala.  443 :  793. 
Albrecht  v.  Treitschke,  17  Neb.  205 : 

892. 
Albright  v.  Albright,   70  Wis.  528: 

395,  396,  478,  678. 
Alden  v.  Yeoman,  29  111.  App.   53 : 

778. 
Aldrich  v.  Aldrich.  37  111.  32 :  940. 
V.  Anderson,  2  Land    Dec.    71 : 

9-17. 
V.  Thurston,  71  111.  324 :  149, 158, 
159. 
Aldridge  v.  Mardoff,  32  Tex.  204 :  32. 
Alexander  v.  Harrison,   2  Ind.  App. 
47:  760. 
V.  Holt,  59  Tex.  205  :  114,  241. 
V.Jackson   (Cal.),   25   Pac.   415: 

107,  718,  726. 
V.  Vennum,  61  la.  160:  423,  559. 
V.  Warrance,  17  Mo.  228 :  603. 
Alford  V.  Alford,  88  Ala.  056:  158. 
V.  Lehman,  76  Ala.  526  :  393,  471, 
557. 


XVIU 


TABLE    OF    CASKS. 


All  V,  Goodson,  33  S.  C.  229  :  3G4. 
Allen  V.  Caldwell,  55  Mich.  8:  119. 
V.  Chase,  58  N.  H.  419:  187. 
V.  Coates,  29  Mian.  46 :  803. 
V.  Cook,  26  Barb.  374 :  292. 
V.  Dodson,  39  Kas.  220 :  151. 
V,  Frost,  02  Ga.  659  :  525,  544,  548, 
V.  Grissoni,  90  N.  C.  90 :  908. 
V.  Hawley.   06   111.164:    118,260, 

337,  495,  688. 
V.  Jackson,  122  111.  507 :  349. 
V.  Kellam,  09  Ala.  442 :   427,  579. 
V,  Kinyon,  41  Mich.  281 :  874. 
V.  Louisiana,  103  U.  S.  80 :  079. 
V.  Mauasse,  4  Ala.  554:  59. 
V.  Perry,  50  Wis.  178:  478. 
V.  Russell,  39  O.  St.  330 :  000,  630, 

820. 
V.  Shields,  72  N.  C.  504 :  280,  587, 

653. 
V.  Strickland,  100  N.  C,  225:  871. 
V.  Towns,  90  Ala.  479 :  733. 
V.  Whitaker  (Tex.),  18  S.  W.  160: 
223. 
Allen's  Appeal,  99  Pa.  St.  196 :  26. 
AUensworth  v.  Kimbrough,  79   Ky. 

332 :  456,  592. 
Alley  V.  Bay,  9  la.  509 :  104,  384,  395, 
718. 
V.  Daniel,  75  Ala.   403 :  880,  920. 
Allison  \.  Brookshire,   38  Tex.  199: 
704,  810. 
V.  Shilling,  27  Tex.  450 :  388,  508, 
582. 
Allman  v.  Ganu,  29  Ala.  240 :  808. 
Alstin  V.  Cundiff,  52  Tex.  453:  394. 
Alsup  V.  Jordan,  69  Tex.   300:   792, 

793,  850.  890. 
Alt  V.  Banholzer,  39  Minn.  511 :  353, 
354.  387. 
V.  Lafayette  Bank,   9  Mo.    App. 
91 :  770,  920. 
Altheimer  v.  Davis,  87  Ark.  316:  298, 

050. 
Amend  v.  Murphy,  09  111.  337 :  797, 
859. 
V.  Smith,  87  111.  198:  770. 
American  Mortgage  Co.  v.  Hopper, 
48  Fed.  47 :  940. 


Ames   V.    Eldrcd,   55  Cal.   130:    105, 
212. 
V.  Martin,  0  Wis.  359,  301 :  810. 
V.  Winsor,  19  Pick.  248:  827. 
Amos  V.  Cosby,  74  Ga.  793 :  432. 
Amphlett  v.  Ilibbard,  29  Mich.  298  ■ 
134,  352,  384,  404,  420,  472, 
751,  905. 
Anchor  v.  Howe,  50  Fed.  366 :  937. 
Anderson  v,  Anderson,  9  Kas.  112: 
386. 
V.  Brewster.  44  O.  St.  580 :  737. 
V.  Brown,  72  Ga.  713 :  550. 
V.  Carkins,  135  U.  S.  483:  947. 
V.  Culbert,  55  la.  233  :  426,  427. 
V.  Ege,  44  Minn.   216:  779,  807, 

809. 
V,  Kent,  14  Kas.  207 :  559,  564. 
V.  McKay,  30  Tex.  180 :  185, 196, 

399. 
V.  Odell,  51  Mich.  492 :  880. 
V.  Patterson,  64  Wis.  557 :  873. 
V.  Peterson,  36   Minn.   547 :  549, 

928. 
V.  Tribble,  63  Ga.  32 :  337. 
Andrews  v.  Alcorn,  13  Kas.  351 :  878. 
V.  Hagadon,    54   Tex.    575:    185, 

190. 
V.  Melton,  51  Ala.  400 :  366,  627. 
V.  Richardson,  21  Tex.  287  :  357. 
V.  Rowen,  28  How.  Pr.  128:  430, 
443,  445,  858. 
Angell  V.  Johnson,  51  la.  625 :  866. 
Angler  v.  Angier,  7  Phila.  305 :  570. 
Anthony   v.    Chapman,   65  Cal.  78: 
165. 
V.  Rice  (Mo.),  19  S.  W.  423 :  628. 
Anthony  A.  C.  Co.  v.  W;;de,  1  Bush 

(Ky.),  110:  516,  918. 
Appeal  of  Overseers,  95  Pa.  St.  191 : 

778. 
Appeal  of  Williamson,  132  Pa   St 

455 :  778. 
Appleton  V.  Bascom,  3  Met.   (Mass.) 

169:  287. 
Archibald  v.  Jacobs,  69  Tex.  249 :  183, 

196. 
Arendt  v.  Mace,  76  Cal.  315 :  164. 
Arenz  v.  Reihle.  1  Scam.  340 :  781. 


TABLE    OF    CASES. 


XIX 


Armitage  v.  Toll,  G4  Mich.  412:  410, 

875. 
Armstronp;  v.   Moore,  59  Tex.  646: 
399. 
V.  Ross,  20  N.  J.  Eq.  109 :  45. 
V.  Stovall,  26  Miss.  275 :  555. 
Arnold   v.  Estis,  92  N.  C.  162:  493, 
678. 
V.  Gotsball,  71  la.  572 :  179,  184, 

232,  282. 
V.  Grimes,  2  la.  1 :  940. 
V.  Jones,  9  Lea,  548 :  31,  35,  117. 
V.  Waltz,  53  la.  706 :  79,  878. 
Arthur  v,  Morrison,  96  U.  S.  108 :  24. 
Arto  V.  Maydole,  54  Tex.  247 :  185. 
Ashe  V,  Yungst.  65  Tex.  631  :  597. 
Asher  v.  Mitchell.  92  111.  480:  675. 

v.  Mitchell,  9  111.  App.  335 :  551. 
Ashley   v.   Olmstead,    54    Cal.   616: 

165. 
Ashton   V.  Ingle.  20  Kas.  670:  181, 

188,  275. 
Association  v,   Atlanta,  77  Ga.  496 : 

443. 
Astley  V.  Capron,  89  Ind.  167 :  878. 
Astrom    v.    Hammond,   3    McLean, 

107 :  953. 
Astugueville  v.  Loustaunau,  61  Tex. 

233:  419. 
Atchison  Bank  v.  Wheeler's  Adm'r, 

30  Kas.  635 :  568. 
Atherton   v.    Fowler,  96  U.   S.   513: 

135.  927,  930.  933,  949. 
Atkins  V.  Paul,  67  Ga.  97 :  443. 
Atkinson  v.  Atkinson,  37  N.  H.  435 : 
40  N.  H.  349  :  66,  93,  3  il,  385, 
417,  581,  695,  703. 
V.  Gatcher,  23  Ark.  103 :  817. 
V.  Hancock.  67  la.  453 :  438. 
Att'y  Gen'l  v.  Smith,  31   Mich.   359 : 

34. 
Atwater  v.  Butler,  9  Bax.  299 :  546. 
V.  Woodbridge.  6  Ct.  223  :  767. 
Aucker  v.  McCoy,  56  Cal.  524:  165, 

177,  235. 
Auld  V.  Butcher,  3  Kas.  155 :  767. 
Aultinan  v.  Heiney,  57  la.  654:  515, 
530. 
T.  Howe,  10  Neb.  8 :  668. 


Aultraan  v.  Jenkins.  19  Nob.  209:  47, 

396. 
Aurora  City  v.  West,  7  Wall.  83,  103: 

747. 
AvTstin   V.   Aldermen,    7   Wall.  694: 
679. 
V.  Loring,  63  Mo.  19 :  669. 
V.  McLaurin,  1  N.  Y.  S.  209 :  837. 
T.  Stanley,  46  N.  H.  51 :  189,  215, 

275,  304,  558,  572. 
V.  Swank,  9  Ind.    109 :    239,  667. 

853.  856. 
V.  Towns,  10  Tex.  34 :  563. 
V.  Underwood,  37  111.  438:   336. 
337.  340,  345.  346,  347. 
Avans  v.  Everett,  3  Lea,  76:  71,  135, 
136. 
v.  Norman,  4  Sneed,  683 :  139. 
Avery  v.  Judd,  21  Wis.  262 :  403. 
V.  Stephens,   48  Mich.  246 :    198, 
303. 
Axer  V.  Bassett.  63  Tex.  545 :  253. 
Axtell  V.  W^arden,   7  Neb.    182:  863. 

950,  953. 
Ayer  v.  Brown,  77  Me.  195 :  834. 
Ayres  v,  Probasco,  14  Kas.  175,  198 : 
295,  378,  384,  386. 


B. 


Babb  V.  Babb,  61  N.  H.  143 :  130. 
Babbitt  v.  Babbitt,  69  111.  277:  570. 
Babcock  v.  Gibbs,  52  Cal.  629:  165, 

177,  235. 
V.  Hoey,  11  la.  375 :  389,  423. 
Bachelder  v.  Fottler,  62  N.  H.  445 : 

625. 
Bachman    v.   Crawford,   3   Humph. 

213:  66.  77,  281. 
Backer  v.  Meyer  (Ark.),  43  Fed.  702  : 

527. 
Backus  V.  Chapman,  111  Mass.  386 :  2. 
Baesker  v.  Picket,  81  Ind.  554 :  883. 
Bagley  v.-  Emberson,  79  Mo.  139:  45. 
Bagnell  v.  Broderick,  13  Pet.  436  :  944. 
Bailey  v.  Campbell,  83  Ala.  343:  579. 

V.  Steve,  70  Wis.  316:  316,  441. 
Baillif  V.  Gerhard,  40  Minn.  172:  181, 

565,  566,  586. 


XX 


TABLE    OF    CASES, 


Baily   v.   AVailc,   24    Mo.    App.    190: 

782. 
Baincs  v.  Raker,  GO  Te.v.  140  :  123,  530, 

570. 
Bail-    V.   SUMiiman,  52  Pa.   St.  423: 

778,  866. 
Baird  v.  Trice,  51   Tex.  559:  28,   40, 

304,  399. 
Baker  v.  Brickell,  87  Cal.  329 :  G02. 
V,  Briutnall,  52  Barb.  188:  779. 
V.  FreemaD,  9  Wend.  36 :  863. 
V.  Hnyzlett,  53  la.  18:  804. 
V.  Jamison,  73  la.  698 :  558,  590, 

593. 
V.  Keith,  72  Ala.  121 :  556,  654. 
V.  Koneman,  13  Cal.  9 :  397. 
V.  Legget,  98  N.  C.  304 :  560. 
V.  Sheelian,  29  Minn.  235 :  904. 
V.  The  State,  17  Fla.  406 :  186, 240, 

620. 
V.  Willis,  123  Mass.  194 :  797. 
Baldwin  v.  Robinson,  39  Minn.  244 : 
225. 
V.  Rogers,  28  Minn.  544 :  515. 
V.  Staik,  107  U.  S.  4G3:  941. 
V.  Talbot,  43  Mich.  11 :  875. 
T.  Tillery,  62  Miss.  378 :  149,  225. 
V.  Whiting.  13  Mass.  57 :  135. 
Baldy's  Appeal,  40  Pa.  St.  328:  41, 

280,  788,  856. 
Balkum  v.  Wood,  58  Ala.  642 :  427, 

471,  579. 
Ball  V.  Bennett,  21  Ind.  427:  915. 
Ballard  v.  Waller.  7  Jones  (N.  C),  84 : 

828. 
Ballou  V.  Gile,  50  Wis.  614 :  765. 

V.  Hale,  47  N.  H.  347:  135. 
Balton  V.  Johns,  5  Pa  St.  145 :  21. 
Bancord  v.  Parker,  65  Pa.  336 :  888. 
Bangs  V.  Watson,  9  Gray,  211 :  818. 
Bank  v.  Buzzell,  60  N.  H.  189 :  383, 
429. 
V.  Carson,  4  Neb.  501 :  296. 
V.  Cooper,  56  Cal.  340 :  952. 
V.  Freeman,  1  N.  D.  196:  789. 
V.  Goodman,  33  S.  C.  601 :  762. 
V.  Green,  78  N.  C.  247 :  241,  300, 

487. 
V.  McLeod,  65  la.  665 :  796. 


Bank  v.  Morris,  6  Hill,  3G2 :  301. 
V.  Roop,  80  N.  Y.  591  :  403. 
V.  Shelton,  87  Tenn.  393 :  78,  93. 
V.  SniisHon,  73  Ga.  422 :  391,  558. 
V.  Treaduay,  17  Fed.  887:  174. 
V.  Truesdail,  38  Mich.  4'^0:  403. 
Bank  of  Constantine  v.  Jacobs,  50 

Mich.  340 :  526. 
Bank  of  La.  v.  Lyon,  52  Miss.  181 : 

380,  405,  406,  550. 
Bank  of  Pa.  v.  Wise,  3  Watts,  396 : 

242. 
Bank  of  San  Jose  v.  Corbett,  5  Saw. 

547:  238. 
Bank  of  U.  S.  v.  Halstead,  10  Wheat 

51:  13. 
Banks  v.  Railway  Co.,  45  Wis.  172 : 
896. 
V.  Rodenbach,  54  la.  695  :  825. 
Bannon  v.  State.  49  Ark.  167 :  27. 
Barber  v.  Babel,  36  Cal.  14 :  121,  377, 
384,  426,  485. 
V.  Harris,  15  Wend.  615:  892. 
V.  Rorabeck,    36  Mich.  399 :    31, 

33,  197,  226. 
V.  Williams.  74  Ala.  331  :  555,  616. 
Barco  v.  Fennell.  24  Fla.  378 :  620. 
Barfield  v.  Barfield,  72  Ga.  668 :  78. 

V.  Jefferson,  84  Ga.  609 :  316. 
Barker  v.  Dayton.  28  Wis.  368 :  389, 
478,  587. 
V.  Ellis,  68  Miss.  172 :  877. 
V.  Jenkins,  84  Va.  895 :  54,  628. 
V.  Owen,  93  N.  C.  198:  366. 
V.Rollins,  30  Ta.  412:   401,  715, 
716,  727. 
Barlow  v.  Gregory,  31   Ct.  264 :  279. 

V.  McKinley,  24  La.  69 :  945. 
Barnard  v.  Brown,  113  Ind.  53:  831, 

873.  923. 
Barnes  v.  Gay,  7  la.  26 :  404. 
V.  Rogers,  23  111.  350 :  83,  96. 
V.  White.  53  Tex.  631 :  185,  191. 
Barnett  v.  Knight,  7  Colo.  365 :  170, 
171,  509. 
V.  Mcndenhall,  42  la.  296 :  44,  47, 

374,  394,  419. 
V.  People's  Bank.  65  Ga.  51 :  421. 
V.  Proskauer,  62  Ala.  486 :  428. 


TABT^E    OF    CASES. 


XXI 


Barney  v.  Keniston,  58  N.   H.   168: 
305,  309.  730,  808,  883. 
V.  Leeds,  51  N.   H.  253 :   59,  94, 
215,   261,  581,  657,   668,  669, 
706,  729. 
Barns  v.  White,  5  Tex.  628 :  196. 
Barnum  v.  Boughton,   55    Ct.    117: 

789. 
Baron  v.  Brummer,  100  N.  Y.  372: 

836. 
Barrett  v.  Durham.  80  Ga.  336 :  96,  98. 
V.  Faihng,  111  U.  S.  523:  73. 
V.  French,  1  Ct  302 :  474 
V.  Richardson,  76  N.  C.  423 :  489, 

678,  725. 
V.  Simms,  62  Cal.  440 :  274,  708. 
V.  Wilson,  102   111.  302 :  405,  406, 
730. 
Barrows  v.    Barrows  (111.),  28  N.  E. 

983 :  297,  385. 
Bartholemew  v.  West,   2  Dill.  293: 

112,  118. 
Bartholomew  v.  Hook,  23  Cal.  277: 

164,  170,  410,  687,  754. 
Bartlet  v.  Harlow,  12  Mass.  348 :  135. 
Bartlett  v.  Morris,  9  Porter,  266 :  24. 
V.  O'Donoghue,  72  Mo.  563  :  45. 
V.  Russell,  41  Ga.  196 :  756. 
Barton  v.  Brown,  08  CaL  11 :  866,  882* 
V.  Drake,  21  Minn.  299 :  353,  377, 

387,  408. 
V.  Mill,  78  Va.  468 :  10. 
Bartram  v.  McCracken,  41  O.  St.  377 : 

230. 
Bassett  v.  Hotel  Co.,  47  Vt.  313 :  519. 
V.  Inman,  7Colo.  270:  878. 
V.  McKenna,  52  Vt.  438 :  424. 
V.  Messner,  30  Tex.  604 :  155,  223, 
224,  225,  226,  227,  713. 
Batchelder  v.  Fottler,  62  N.  H.  445 : 
262. 
V.  Shopleigh,   10    Me.    135 :    797, 
802. 
Bates  V.  Bates,  97  Mass.  392 :  135, 144, 
459,  616,  632. 
V.  Callender,  3  Dak.  256 :  918. 
V.  Seely,  46  Pa.  St.  248 :  142. 
Battle  V.  John,  49  Tex.  202 :  142, 
Batts  V.  Scott,  37  Tex.  65 :  181,  505. 


Baxter  t.  Dear,  24  Tex.  17:  315,  747. 

V.  Tripp,  12  R.  I.  310:  33,  34. 
Bayless  v.  Bayless,  4  Coldwell,  35!; : 

787. 
Baylies  v.  Houghton,  15  Vt.  626:  893. 
Baylor  v.  Bank,  38  Tex.  448:  41,  251, 

280. 
Bayne    v.  Patterson,  40  Mich.    658: 

780,  874,  921. 
Beach  v.  Hollister,  3  Hun,  519 :  143. 

V.  Miller.  51  III.  206  :  945. 
Bean  v.  Fisher,  14  Wis.  57 :  691. 
Beard  v.  Blum,  64  Tex.  .59:  253. 

V.  Johnson,  87  Ala.  729 :   65,  146, 

270. 
Beatty  V.  Rankin,  139  Pa.  St.  358 :  540, 

817,  872. 
Beaty  v.  Vrom.  18  W.  Va.  291 :  105. 
Beavan  v.  Speed,  74  N.  C.  544 :   480, 

541,  614. 
Beavans  v.  Goodrich,  98  N.  C.  217 : 

676. 
Bebbv.  Crome,  39  Kas.  342:  2,  6,  181, 

188. 
Bechtoldt  v.  Fain,  71   Ga.  495 :   122, 

698. 
Beck  V.  So  ward,  76  Cal.  527 ;  164, 170. 
Becker  v.  Becker,  47  Barb.  497 :  787. 
Beckert  v.  Whitlock,   83   Ala.    123: 

556,  673. 
Beckman  v.  Meyer,  75  Mo.  333 :  93, 94, 

291,   373,   515,  562,  580,  585, 

733. 
V.  Stanley,  8  Nev.  257 :  45. 
Beckner  v.  Rule,  91  Mo.  62 :  671. 
Bedford  v.  Small,  31  Minn.  1 :  948. 
Beebe  v.  Griffing,  14  N.  Y.  244 :  26,  32. 
Beecherv.  Baldy,  7  Mich.  488:  134, 

169,   173,   352,  472,  546,   618. 

730. 
Beedle  v.  Cowley  (la.),  52  N.  W.  493 : 

649. 
Beegle  v.  Wentz,  55  Pa.  St.  369 :  542. 
Beekman  v.  Chalmers,  1   Cow.  584 : 

860. 
Beers  v.  Haughton,  9  Pet.  329  :  12, 13, 

280. 
Behymer  v.  Cook,  5  Colo.  395 :  305, 

309,  729,  782,  802,  815. 


XXll 


TABLE    OF    CASES. 


Beldenv.  Younger,  7G  la.  567:  318, 

417,  r,3!). 
Belkuap  v.  Belkuap,  3  Johns.  Ch.  403 : 
857. 
V.  Martin,  4  Bush,  47  :  179. 
Bell  V.  Bell,  84  Ala.  64 :  458. 

V,  Davis,  42  Ala,  460:  555,  729, 

866. 
V.  Devore,  96  111.  217:  531,  918. 
V.  Hall,  76  Ala.  546 :  878. 
V.  Keach,  80  Ky.  43 :  878. 
V.  Morrison,  1  Pet.  351 :  281. 
V.  Schwarz,  37  Tex.  573  :  558,  596, 
603. 
Bellinger  v.  White,  5  Neb.  401 :  950. 
Belloe  V.  Rogers,  9  Cal.  136 :  627. 
Bellows  V.  Todd,  34  la.  18:  933. 
Beloitv.  Morgan,   7  Wall.    619-633: 

747. 
Belote  V.  Wynne,  7  Yer.  543:  281. 
Below  V.  Robbins,  76  Wis.  600 :  850, 

864,  890. 
Bemis  v.  Bridgman,  43  Minn.  496 : 
948. 
V.  Driscoll,   101  Mass.   431 :    135. 
136. 
Benagh  v.  Turrentine,  60  Ala.  557 : 

631,  696. 
Bender  v.  Meyer,   55  Ala,   576:    65, 

146. 
Benedict  v.  Bunnell,  7  Cal.  345 :  177, 
211,  580. 
V.  Gaylord,  11  Ct.  333:  143. 
V.  Webb,  57  Ga.  348 :  550. 
Benham  v.  Chajnberlain,  39  la.  358 : 

285,  437,  439. 
Bennett  v.  Baird,  81  Ky.  554:  186. 
V.  Child,  19  Wis.  366 :  300. 
V.  Cutler,  44  N.   H.  70 :  261,  384, 

417. 
V.  Hutson,  33  Ark.  763:  518,  531, 

874. 
V.  Mattingly,  110  Ind.  197:  391. 
Benson  v.  Aitken,  17  Cal.   164:  564, 

580. 
Bentley  v.  Jordan,  3  Lea,  353 :  339, 342, 

343,  346,  358,  369,  410,  500. 
Benton  v.  Wickwire,  54  N.  Y.  226-8 : 
24. 


Bentonville  R.  Co.  v.  Baker,  45  Ark. 

253:  631. 
Beciuillard  v.  Bartlett,   19  Kan.  382: 

797,  814. 
Berg  V.  Baldwin,  31  Minn.  541 :  810. 
Bergsma  v,    Dewey,  46  Minn.    357: 

749,  751. 
Bernier  v.  Bernier,  72  Mich.  43:  928. 
Berrell  v.  Schie,  9  Cal.  104:  912. 
Berry  v.  Boggess,  63  Tex.  239 :  356. 
V.  Dobson  (Miss.),  10  So.  45:  108. 

134,  608. 
V.  Ewing,  91   Mo.  395:  301,  387, 

389. 
V.  Hanks,  28  111.  App.    51 :  774, 

853,  918. 
V.  Nichols,  96  Ind.  287 :  878,  916. 
Berthold  v.  Hoi  man,   12  Minn.   335: 

767. 
Bertrand  v.  Elder,  23  Ark.  494 :  518. 
Best  V.  Allen,  30  111.  30 :  486. 

V.  Gholson,  89  111.  465 :  44,  345, 

556. 
Bevan  v.  Hayden,  13  la.  122:  31,  811. 
Bevett  V.  Crandall,  19  Wis.  610:  798, 

812,  813. 
Beyer  v.   Thoming  (la.),   46   N.   W. 

1074 :  155,  530. 
Beyschlag  v.  Van  Wagoner,  46  Mich. 

91:  421. 
Bibb  V.  Freeman,  59  Ala.   612 :    358, 

517. 
V.  Janney,  45  xVla.  329 :  875, 
Bicknell  v.  Trickey,  34  Me.  273 :   818. 
Bigelow  V.   Pritchard,  21   Pick.   174 : 

41,  280. 
Biggers  v.  Bird,  55  Ga.  650 :  355. 
Biggs  V.  McKenzie,  16  III.  App.  286 : 

776,  853. 
Bilbrey  v.  Poston,  4   Bax.  232 :  546, 

607. 
Billings  V.  Baker,  28  Barb.    343 :  45. 

V.  Hall,  7  Cal.  1 :  767. 
Billingsley  v.  Neblett,  56   Miss.   537 : 

348. 
V.  Spencer,  64  Mo.  355 :  418. 
Billmeyer  v.  Evans,  40  Pa  St  334 : 

767. 
Bills  V.  Bills,  41  O.  St.  206:  230,  530. 


TABLE    OF    CASES. 


XXlll 


Bills  V.  Mason,  42  la.  329 :  19,  333,  347, 

437. 
Bingham  v.  Maxcy,  15   III.  290 :  778. 
Binkert  v.  Wabash  E.  Co.,  98  111.  206 : 

329. 
Binzel  v.  Grogan,  67  Wis.    147 :  180, 

441. 
Bird  V.  Logan,  35  Kas.  228 :  426. 
Birdsong  v.  Tuttle,  52  Ark.  91 :  774. 
Birrell  v.  Schie,  9  Cal.  104 :  346. 
Bishop  V.  Hubbard,  23  Cal.  514 :  137, 

140. 
Bishop's  Fund  v.  Ryder,  13  Ct.  87: 

294. 
Bissell  V.  Grant,  35  Ct.  288 :  474. 
Bittenger's   Appeal,  76  Pa.  St  105: 

866. 
Bitting  V.  Vandenburgh,  17  How.  Pr. 

80:  797. 
Black  V.  Curran,  14  Wall.  469 :  267, 

268,  486,  730. 
V.  Epperson,  40  Tex.  187 :  377. 
V.  Lusk,  69  111.  70 :  44,  405,  406, 

419,  614,  676. 

V.  Rockmore,  50  Tex.  95 :  550,  597. 
V.  Singley  (Mich.),  51  N.  W.  704 : 

420.  * 

Blackburn  v.    Knight,  81  Tex.   326: 

183,  186,  756. 
Blackman  v.  Clements,  45  Ga.  292: 

756. 
Blackwell  v.  Broughton,  56  Ga.  390 : 

59,  85,  96. 
Blackwood  v.  Van  Vliet,   30  Mich. 

118:  34. 
Blair  v.  Marsh,  8  la.  144 :  347. 

V.  Parker,  4   111.  App.  409 :   850, 

853,  854. 
V.  Wilson,  57  la.  177 :  593. 
Blair  Town  Co.  v.  Kitteringham,  43 

la.  462 :  931. 
Blake  v.  Tucker,  12  Vt.  39 :  392. 
Blakeney  v.  Bank,  17  S.  &  R  64 :  21. 

V.  Ferguson,  20  Ark.  547 :  135. 
Blakey  v.  Newby,  6  Munf ,  64 :  608. 
Blalock  V.  Denham,  85  Ga.  646 :  286. 

V.  Elliott,  59  Ga.  837:  541. 
Blanchard  v.  Jamison,  14  Neb.  244 : 

951. 


Blancliard  v.  Paschal,  68  Ga.  32,  34 : 

905,  908,  909. 
V.  Spragu«,  3  Sum.  535  :  41. 
Blandy  v.  Asher,  72  Mo.  27 :  69. 
Blankenship  v.  Blankenship,  19  Kas. 

159:  67,  69. 
Blassingame  v.  Rose,  34  Ga.  418 :  619. 
Bledsoe  v.  Gary  (Ala.),  10  So.  502 :  878. 
Blessing    v.    Edmondson,    49    Tex. 

333:  67. 
Bliss  V.  Clark,  39  111.  590 :  265,  486, 

495,  853,  918. 
V.  Smith,  78  IIL  359 :  823. 
V.  Vedder,  34  Kas.  57:  803. 
Blivins  v.  Johnson,  40  Ga.  297:  213, 

672,  728. 
Block  V.  Bragg,  68  Ala.  291 :  673,  674, 

914. 
V.  George,  83  Ala.  178 :  673,  696, 

703,  914. 
Blose  V.  Bear,  87  Va.  177 :  15. 
Blossom  V.  Brightman,  21  Pick.  285 : 

135. 
Blue  V.  Blue,  38  111.  9 :  117,  266. 
Blum  V.  Carter,  63  Ala.  235 :  194,  575. 
V.Gaines,  57   Tex.  119:    85,   94, 

592. 
V.  Light,  81  Tex.  414 :  599,  604. 
V.  Merchant,  58  Tex.  400 :  253. 
V.  Rogers,  78  Tex.  530 :  183,  349, 

501. 
Blythe  v.  Jett,  52  Ark.  547 :  520,  865, 

921. 
V.  Dargin,  68  Ala.  370 :  427. 
Board  of  Comm'rs  v.  Riley,  75  N.  C. 

144:  316. 
Board  of  Trustees  v.  Beale,   98  111. 

248:  557. 
Bockholt  V.  Kraft,  78  la.  661 :  722. 
Boesker  v.  Pickett,  81  Ind.  554 :  866, 

919. 
Bogan  V.  Cleveland,  53  Ark.  101 :  520, 

525,  865. 
Bolckow  Co.  V.  Turner,  23  Mo.  App. 

103 :  910,  913. 
Boiling  V.  Jones,  67  Ala.  508 :  20,  227, 

535,  637. 
Bollinger  v.  Manning,  79  Cal.  7 :  380, 

383,  599. 


XXIV 


TABLE    OF    CASES. 


Bolt  V.  Keylioe,  30  Hun,  619:  879. 
Bolton  V.  Landers,  27  Cal.  104 :  676. 

V.  Oberne,  79  la.  278:  415. 
Bomack  v.  Sykes.  24  Tex.  218 :  297. 
Bond  V.  Hill,  37  Tex.  626 :  366. 

V.  Seymour,  1  Chand.  (Wis.)  40: 

514. 
Bonds  V.  Greer,  56  Miss.  710 :  24. 

V.  Strickland,  60  Ga.  624 :  393. 
Bonham  v.  Craig,  80  N.  C.  224 :  354. 
Bonnel  v.  Dunn,  28  N.  J.  L.  155 ;  29 

id.  485  :  580,  771,  860. 
Bonnell  v.  Bowman,  53  111.  460 :  865. 
Bonorden  v.  Kriz,  13  Neb.  121  :  896, 

412. 
Bonsall  v.  Couely,  44  Pa.  St.  447 :  148, 

903,  904. 
Booker  v.  Anderson,  35  111.  66 :  579. 
Boone  v.  Hardie,  87  N.  C.  72 :  354. 
Boot  V.    Brewster,  75  la.  631:   219, 

562,  674. 
Booth  V.  Gait,  58  Cal.  254 :  64. 

V.  Goodwin,    29    Ark.   633 :    298, 

547,  627,  651,  657. 
Bopp  V.  Fox,  63  111.  540 :  907. 
Bordages  v.  Higgins  (Tex.),  19  S.  W. 

446:  869. 
Borden  v.  Bradshaw,  68    Ala.  362: 

828. 
V.  Northern  Pac.  E,  Co.,  12  Sup. 

Ct.  Reporter,  856 :  942. 
Boreham  v.  Byrne,  83  Cal.  23:  11, 

164,  165,  169,   177,  293,  372, 

433,  469,  667. 
Borland  v.  O'Neile,  22  Cal.  505 :  888. 
Boroughs  V.  White,  69  Ga.  842 :  417, 

544,  548. 
Borron  v.  Sollibellos,  28    La,   Ann. 

855:  135,  136. 
Bosley  v.  Mattingly,  14  B.   Mon.  89 : 

24,  83. 
Bossier  v.  Sheriff,  87  La.  Ann.  263 : 

39,  178,  293. 
Boston,  etc.  Co.  v.  Condit,  19  N.  J. 

Eq.  394 :  135. 
Boston  Belting  Co.  v.  Ivens,  28  La. 

Ann.  695 :  802. 
Bouchard  v.  Bourassa,  57  Mich.  8 :  31, 

33,  197,  225. 


Bouldon's  Case,  57  Md.  314 :  873,  875. 
Bourne  v.   Mcrritt.  22  Vt.  429:  860, 

879,  882. 
Bowen  v.  Barksdale,  33   S.  C.  142: 
418. 
V.  Bowen,  55  Ga.  182 :    64,  547, 
548,  087. 
Bowker  v.  Collins,  4  Neb.  496 :  136, 

742. 
Bowles  V.  Hoard,  71  Mich.  150 :  198. 
Bowman  v.  Norton,  16  Cal.  220 :  310, 
392.  485,  486.  606,  744. 
V.  Smiley,  81   Pa.  St.  225 :    231, 

542,  668,  847,  878. 
V.  Tagg.  12  Phila.  845 :  885. 
V.  Watson,  66  Tex.  295 :  252. 
Bowne  v.  Witt,  19  Wend.  475 :  83,  97, 

795. 
Bowyer's  Appeal,  21  Pa  St.  210 :  401, 

507,  547,  580,  778. 
Boyce  v.  Danz,  29  Mich.  146 :  940. 
Boyd  V.  Barnett,  24  111.  A  pp.  199 :  123. 
V.  Cudderback,  31    111.    113:   44, 
266,  384,  405,   422,   550,   554, 
556,  613,  950. 
V.  Ellis,  11  la.  97:  410. 
V.  Fullerton,  125  111.  437  :  159,  571. 
V.  Furniture  Co.,  38  Mo.  App.  210 : 
910,  913. 
Boyden  v.  Ward,  88  Vt.  628 :  192. 
Boykin  v.  Edwards,  21  Ala.  261  :  290, 

771. 
Boyle  V.  Shulman,  59  Ala.   566 :  164, 
170,  426,  575,  579. 
V.  Vanderhoof,  45  Minn.  31 :  824. 
V.  Zacharie,  6  Pet.  659 :  18. 
Boynton  v.  McNeal,  81  Gratt.  459 :  55, 
531,  588. 
V.  Sawyer,  35  Ala.  500 :  579,  696. 
Brackett  v.  Watkins,  21   Wend.  (N. 

Y.)  68 :  507,  547,  919. 
Bradford    v.    Central   Loan    Co.,   47 
Kas.587:  358. 
V.  Li  m  pus,  13  la.  424  :  727. 
Bradley  v.  Bischel,  81  la.  80 :  709. 
V.  Curtis,  79  Ky.   827 :   333,  343, 

352,  355. 
V.  Eodelspergei-,  3  S.  C.  226 :  84, 
93,  641,  657. 


TABLE    OF    OASES. 


XXV 


Bradshaw  v.  Atkins,  110  111.  323:  376. 

V.  Hurst,  57  la.  745 :  31,  562,  594. 

Brady   v.   Banta,   46   Kas.    131  :  654. 

694. 
V.  Brady,  67  Ga.  368 :  550. 
Brainard  v.  Simmons,  67  la.  646  :  836. 

V.  Van  Knran,  22  la.  261 :  283. 
Brake  v.  Ballon,  19  Kas.  397 :  747. 
Bramble   v.  State,  41    Md.  435,  441 : 

775,  785. 
Brame  v.  Craig,  12    Bush,  404:  269, 

372,  373,  550. 
Bramin  v.  Womble,  32  La.  Ann.  805 : 

145,  170,  172. 
Branch  v.  Tomlinson,   77  N.  C.  388 : 

541,  869,  885. 
Brandon    v.    Brandon,    14  Kas.  342 : 

67,  69,  262. 
V.  Moore,  50  Ark.  247 :  9,  297. 
Brantley  v.  Stephens,  77  Ga,  467 :  671, 

674. 
Braswell  v.    McDaniel,   74  Ga.  319: 

649,  777,  861. 
V.  Morehead,  Busb.  Eq.  26 :  300. 
Branch,  Ex  parte,  72  N.  C.  106 :  640. 
Brennan  v.  Wallace,  25  Cal.  108 :  562, 

563,  565. 
Bresee  v.  Stiles.  22  Wis.  120  :  615,  621. 
Brettun  v.   Fox,  100  Mass.  235:  258, 

458,  466,  567,  585,  623. 
Brewer  v.  Granger,  45  Ala.  580  :  144. 
V.  Linnaus,  36  Me.  428 :  570. 
V.  Wall  23  Tex.  589 :    388.  399, 

568,  600,  603. 
Brewster  v.  Davis,  56  Tex.  478 :  394. 

V.  Link,  28  Mo.  148 :  860. 
Briant  v.  Lyons.  29  La.  Ann.  64 :  655. 
Bridewell  v.  Halliday,  37  La.  Ann. 

410 :  39,  327. 
Bridge  v.  Ward,  35  Wis.  687 :  180. 
Bridgers  v.  Howell,  27  S.  C.  425:  124, 

652. 
Bridgman  v.  Wilcut,  4  G.  Gr.  (la.) 

563:  295. 
Bridwell  v.  Bridwell,  76  Ga.  627 :  76, 

455. 
Brierre  v.  Creditors,  43  La.  Ann.  423 : 

825. 
Briggs  V.  Briggs,  45  la.  318 :  590,  59a 


Brighani  v.  Bush,  S3  Barb.  596 :  598» 

787. 
Brill  V.  Styles,  35  111.  305 :  940. 
Briukerhoff  v.  Everett,  38  111.  263: 

574,  586.  650. 
Brinson  v.  Edwards  (Ala.),  10  So.  219: 

901,  919. 
Briscoe  v.  Bronaugh,  1  Tex.  326 :  33a 
Broach  v.  Bartteld,  57  Ga.  601 :  855, 
550. 
V.  Powell,  79  Ga.  79,  83 :  543,  544, 
550. 
Broad  v.  Murray,  44  Cal.  228 :  321. 
Broadstreet  v.  Clark,  65  la.  670 :  896. 
Broadwell  v.  Broadwell,    1   Gilman, 

595:  391. 
Brock  V.   Leighton,    11   Bradw.   (HL 
A  pp.)  361:  159. 
V.  South  wick,  10  Tex.  65 :  597. 
Brokaw  v.  McDougall,  20  Fla.  212: 

448,  618. 
Bromley  v.  McCall   (Ky.),  18  S.  W. 

1016:  720. 
Bronson  v,  Kinsie,  1  How,  (U.  S.)  311 : 
677. 
v.  Newberry,  2  Doug.  (Mich.)  38: 
767. 
Brookbank  v.  Kennard,  41  Ind.  339: 

397. 
Brooks  V.  Chatham,  57  Tex.  33 :  196. 
V.  Collins,  11  Bush.  622:  87,  45& 
V.  Hathaway,  8  Hun,  290 :  865. 
V.  Hicks,  20  Tex.  666:  32. 
V.  Hildreth,  22  Ala.  469 :  852. 
V.  Hyde,  37  Cal.  373 :  104, 112, 117. 
V.  School  Com'rs,  31  Ala.  237  :  32. 
V.  State,  54  Ga.  36 :  14,  294,  327. 
V.  Young,  60  Tex.  32 :  348. 
Broome  v.  Davis  (Ga.),  13  S.  E.  749 : 

443. 
Broussard  v.  Broussard,  43  La.  Ann. 

921:  953. 
Brown  v.  Balfour,  46  Minn.  68 :  764, 
765,  837. 
V.  Brown,  33  Miss.  39  :  621. 
v.  Brown's   Adm'r,   68   Mo.  388: 

66,  581,  773,  826. 
V.  Coon,  36  III.  243 :  61,  387,  406, 
579,  582,  586. 


XXVI 


TABLE    OF    CASES. 


Brown  v.  Cozard,  92  111.  178 :  380,  410, 
725. 
V.  Davis,  9  Hun,  43 :  805,  865. 
V.  Doneghey,  46  Ark.  497 :  871. 
V.  Driggers,  63  Ga.  354 :  394. 
V.  Heath,  45  N.  H.  168:441. 
V.  Ht'bard,  20  Wis.  344 :  827. 
V.  Hoffmeister,  71  Mo.  411 :   781, 

800. 
V.  Keller,  33  111.  151 :  108, 112,  266. 
V.  Leitch,  60  Ala.  313 :   868,  875, 

885. 
V.  McLennan,  60  Tex.  43 :  138, 142, 

194,  223. 
V.  Manter,  31  N.  H.  528 :  393. 
V.  Martin,  4  Bush,  47 :  186,  189. 
V.  Peters,  53  Ark.  183 :  728,  888. 
V.  Starr,  79Cal.  608:  117. 
V.  Warren,  16  Nev.  228 :  953. 
V.  West,  73  Me.  33 :  818. 
V.  Watson,  41  Ark.  309 :  563. 
Browning  v.  Bettis,  8  Paige,  568 :  836. 
V.  ^Harris,  99  111.  462 :    313,  365, 
409,  586. 
Bruce  v.  Strickland,  81  N.  C.  867 :  44, 

79,  493. 
Bruff  V.  Stern,  81  N.  C.  183 :  917. 
Brumbaugh  v.  Shoemaker,  51  la.  148 : 
413,  737. 
V.  Zollinger,  59  la.  384 :  156,  718, 
739,  758. 
Brummett  v.  Pearle,  36  Ark.  471 :  953. 
Bruner  v.  Bateman,  66  la.  488 :  430. 
Brusie  v.  Griffith,  34  Cal.  302 :  801,  805, 

807.  811,  834. 
Bryan  v.  Kelly,  85  Ala.  569 :  777,  816, 
847,  861,  880. 
V.  Rhoades,  96  Mo.  485 :  617,  705. 
Bryant  v.  Lyons,  39  La.  Ann.  64 :  636. 

V.  Woods,  11  Lea,  337:  19. 
Buchanan  v.  Alexander,  4  How.  30  : 

844. 
Buck  V.  Ashbrook,  59  Mo.  300  :   389, 
533,  535. 
V.  Conlogue,  49  111.  391 :  61,  586. 
Buckingham  v.  Billings,  13  Mass.  82 : 
37,  802. 
V.  Buckingham,  81  Mich.  89 :  46, 
584. 


Buckingham   v.   Fislior,  70   III.  121  : 

826. 
V.  Nelson,  43  Miss.  417:  694. 
Buckley  v.  Wheeler,  53  Mich.  1 :  874. 
Bugbee  v.  Beniis,  50  Vt.  316:  26,  28, 

187,  192. 
Bugg  V.  Russell,  75  Ga.  837  :  337,  339, 

501. 
Buie  V.  Scott,  107  N.  C.  181 :  158. 
Building  Ass'n  v.  Chalmers,  75  Cal. 

332 :  384,  485,  608. 
V.  King,  83  Cal.  440 :  599. 
Bull  V.  Coe,  77  Cal.  54 :  380. 

V.  Conroe,  13  Wis.  338 :  31,  325, 

226. 
V.  Rowe,  13  S.  C.  365 :  279. 
V.  Shaw,  48  Cal.  455 :  952. 
Bullene  v.   Hiatt,    12  Kas.   98:   303, 

304. 
Bumgardner  v.  Circuit  Court,  4  Mo. 

50:  767. 
Bumpus  V.  Maynard,  38  Barb.   626 : 

795. 
Bunker  v.  Locke,  15  Wis.  635:    82, 

147,  151,  180. 
V.  Paquette,  37  Mich.  79 :  187,563. 
Bunn  V.  Lindsay,  95  Mo.  250,  258 :  15, 

288,  294. 
Bunnel  v.  Stockton,  83  Cal.  319 :  74. 

V.  Hay,  73  Ind.  452 :  878. 
Bunting  v.  Beideman,  1  Cal.  182 :  272. 
Bunz  V.  Cornelius,  19  Neb.  107 :  379. 
Burbank  v.  Rockingham  Ins.  Co.,  24 

N.  H.  550 :  950. 
Burch  V.  Atchison,  82  Ky.  585 :  545. 
V.  Sheriff,  37  La.  Ann.  725 :  562. 
Burden  v.  Thayer,  3  Mete.  76 :  242. 
Burdge  v.  BoHn,  106  Ind.  175:  831. 
Burdick  v.  Kent,  52  la.  583 :  464, 592, 

594. 
Burfenuing  v.  Railroad  Co.,  46  Minn. 

20:  931. 
Burgess  v.  Bowles,  99  Mo.  543,  547": 

464,  637. 
Burgett  V.  Apperson,  52  Ark.  213: 

706. 
Burgwyn  v.  Hall,  108  N.  C.  489 :  647. 
Burk  V.  Osborn,  9  B.  Mon.  579:  621. 
V.  Webb,  32  Mich.  173 :  861. 


TABLE    OF    CASES. 


XXVI] 


Burke  v.  Gleason.  4fi  Pa.  St.  297  :  637, 
646.  778,  788. 
V.  Hance,  76  Tex.  82 :  899. 
Burkett  v.  Burkett,  78  Cal.  310 :  121, 

123,  384. 
Burleson  v.  Burleson,  28  Tex.   418: 

629. 
Burlington  R.  Co.  v.  Johnson,  38  Kas. 
142:  945. 
V.  Thompson,  31   Kas.  180 :  901. 
Burmeister  v.  Dewey,  27  la.  468 :  414, 

727. 
Burnap  v.  Cook,  16  la.  149 :  333,  339, 

353,  380,  384. 
Burnett  v.  Burnett,  17  S.  C.  552 :  453. 
V.  Walker,  23  La.  Ann.  335 :  655. 
Burns  v.  Banger t,  92  Mo.  167 :  289, 
515. 
V.  Harris,  67  N.  C.  140 :  144, 
V.  Jones,  37  Tex.  50 :  84,  94. 
V.  Keas,  21  Ta.  257:  269,  401,  590 

591,  622. 
V.  Ledbetter,  56  Tex.  286 :  357. 
V.  Lewis,   86  Ga.  591 :  582,   584, 

729,  730,  746. 

V.  Thayer,  101  Mass.  426 :  346. 

Burnside  v.  Terry,  51  Ga.  186 :  15,  130, 

279,  294,  375,  404. 

V.  Watkius,  30  S.  C.  459 :  330. 

Bursen  v.  Goodspeed,  60  111.  281 :  120, 

463,  494,  619. 
Burson  v.  Fowler,  65  111.  146  :  61,  582. 
Burt  V.  Box,  36  Tex.  114:  645. 

V.  Randlett,  59  N.  H.  130 :  641. 
Burton  v.  Mill,  78  Va.  468 :  323. 

V.  Spiers,  87  N.  C.  87 :  117,  120, 
480,  676,  679,  855. 
Burtz  V.  Robinson,  59  Ga.  763 :  550. 
Bush  V.  Lester,  55  Ga.  579 :  279,  355, 
550. 
V.  Scott,  76  111.  524 :  336,  342, 729. 
Butler  V.  Clark,  46  Ga.  466 :  825. 

V.  Nelson,  72  la.  732 :    284,  515, 

530. 
V.  Pennsylvania,  10  How.  (U.  S.) 

416:  767. 
V.  Shiver,  79  Ga.  172 :  817. 
V.  Stainback,  87  N.  C.  216 :  410, 
679,  716,  725. 


Butner  v.  Bowser,  104  Ind.  255:  764. 
Butt  V.  Green,  29  O.  St.    667:    419, 

542,  730,  778,  781,  866,  868. 
Butterfield  v.  Wicks,  44  la.  310 :  464, 

590,  592,  593,  620,  622. 
Putter  worth  v.  Hoe,  112  U.  S.    50: 

941. 
Butts  V.  Broughton,  72  Ala.  294 :  182, 

428. 
Buxton  V.  Dearborn,  46  N.  H.  44 :  31, 

158,  215,  559,  615. 
Buzzell  V.  Hardy,  58  N.  H.  331 :  730. 

882,  866. 
Byers  v.  Byers,  21  la.  268 :  74,  94,  745. 
Byous  V.  Mount,  89  Tenn.  361 :  764, 

810,  818. 
Byram  v.  Byram,  27  Vt.  295 :  627. 
Byrd  v.  Curlin,  1  Humph.  466:  919. 
V.  Jones,  37  Ark.  194 :  525. 


C. 


Cabeen  v.  Mulligan,  37  111.  230:  180, 

568. 
Cabell  V.  Givens,  30  W.  Va.  760 :  287. 
Cadwalader   v.    Howell,   18  N.  J.  L. 

138:  580. 
Cady  V.  Eighmey,  54  la.  615  :  940. 
Cahall  v.  Building  Ass'n,  61  Ala.  232 : 

428,  429,  471. 
Cahill  V.  Wilson,  62  111.  137 :  180,  568. 
Cahoun  v.  McLendon,  42  Ga.  406 :  58. 
Cain  V.  Chicago  R.  Co.,  54  la.  255 : 
590. 
V.  Leslie,  15  Ark.  312 :  953. 
Calderwood  v.  Tevis,  23  Cal.  336  :  112. 
Caldwell  v.  Pollak,  91  Ala.  353 :  488, 
730. 
V.  Seivers,  85  Ky.  38 :  561. 
V.  Truesdale  (Ky.),  13  S.  W.  101 : 
729.  745. 
Caleb  V.  Buruett,  55  Miss.  83 :  653. 
Calhoun  v.  Knight,  10  Cal.  393:  807. 
V.  McLendon,  42  Ga.  406 :  59,  80, 

83.  96. 
V.  Snyder,  6  Binney,  135 :  379. 
V.  Williams,  32  Gratt.  18 :  75,  80, 
85,  94,  97,  101. 
Call  V.  Hagger,  8  Mass.  423 :  767. 


XX  VI 11 


TABLE   OF   CASES. 


Calladay  v.  Pilkington,  12  Mod.  513: 

37. 
Callanan  v.  Shaw,  19  la.  183:  720. 
Callaway  v.  Carpenter,  10  Ala,  500 : 

533,  918. 
Callura  V.  Petigrew,  10  Heisk.  394 : 

45. 
Cameron   v.    Cameron,  82  Ala  392: 
646. 
V.  Fay,  55  Tex.  58 :  441,  443. 
V.  Marshall,  65  Tex.  7 :  365. 
V.  Mason,  7  Ired.  Eq.  180 :  334. 
V.  Morris  (Tex.),    18  S.  W.  423 : 
599,  704. 
Cameto  v.   Dupuy,  47  Cal.  79 :  136, 

140,  627. 
Cammack  v.  Lovett,  44  Ark.  180 :  525. 
Camp  V.  Bates,  11  Ct.  51 :  300. 

V.  Ganley,  6   111.  App.  499 :  854, 

859. 
V.  Grider,   62  Cal.   20 :   380,  383, 

599. 

V.  Smith,  61  Ga.  449 :  61,  65,  940, 

950. 

Campbell  v.  Adair,  45  Miss.  178,  182 : 

31,  116,  147,  179,  186,  558,  563. 

V.  Babcock,  27  Wis.  512 :  362,  377, 

426,  478,  692. 
V.  Elliott,  53  Tex.  159 :  381,  899, 

415. 
V.  Gould,  17  Ind.  133 :  883. 
V.  Jones,  52  Ark.  493,  497 :  518, 

520,  525. 
V.  Macmanus,  32  Tex.  442 :  323. 
V.  Maginnis,  70  la,  589 :  333. 
V.  White,  95  N  C.  491 :  669,  677, 
792,  793. 
Canal  Co.  v.  Railroad  Co.,  4  Gill  &  J. 

152:  24. 
Cancemi  v.  People,  18  N.  Y.  135 :  540. 
Canfield  v.  Hard,  58  Vt.  217 :  117. 

V.  Monger,  12  Johns.  347 :  747. 
Cannon  v.  Bonner,  38  Tex.  491 :  251, 
627,  706. 
V.  Boutwell,  53  Tex.  626 :  430. 
V.  McDaniel,  46  Tex.  304 :  340. 
Canole  v.  Hurt,  78  Mo.  649 :  603,  645. 
Cantrell  v.  Conner,  51  How.  (N.  Y.) 
45:  80. 


Cantrell  v.  Connor,  0  Daly  (N.  Y),  224 : 
794 
V.  Fowler,  24  S.  C.  424:  158,  445. 
Cantrill  v.  Risk,  7  Bush,  159 :  667. 
Canty  v.  Lattorner,  31  Minn.  239 :  386. 

V.  Sanderford,  37  Ala.  91 :  45. 
Capek  V.  Kropik,    129    111.  509,  519: 

37,  62,  78,  404,  644. 
Caraker  v.  Matthews,  25  Ga.  571 :  825. 
Carey  v.  Hess,  112  Ind.  398 :  767. 
V.  Hotailing,  1  Hill  (N.  Y.),  311 : 
348. 
Carhart  v.  Harshaw,  45  Wis.  340,  347 : 

409. 
Carl  V.  Smith,  8  Phila.  569 :  919. 
Carlisle  v.  Godwin,  68  Ala.  137:  19. 
Carlton  v.  Watts,  82  N.  C.  213 :  678, 

767,  910. 
Carraack  v.  Lovett,  44  Ark.  180 :  532. 
Carnali  v.  Wilson,  21    Ark.  62:  619, 

621. 
Carnrick  v.  Myers,  14  Barb.  9 :  865. 
Carolina  N.  Bank  v.  Senn,  25  S.  C. 

572,  581 :  66. 
Caroon  v.  Cooper,  63  N.  C.  386 :  117, 

120. 
Carpenter  v.  Herrington,  25  Wend. 
370:  817. 
V.  Providence  Ins.    Co.,  16   Pet, 

495:  609. 
V.  Warner,  38  O.  St.  416 :  419. 
V.  Williamson,  25  Cal.  154 :  607. 
Carper  v.  Munger,  62  Ind.  481 :  431. 
Carr  v.  Caldwell,   10  Cal.  385:   337, 
347,  404. 
V.  Rising,  62  111.  14 :  568. 
Carre  v.  City,  41  La.  Ann.  998;  43 

id.  1121 :  766. 
Carrigan  v.  Bozeman,  13  S.  C.  376: 

279. 
Carrington  v.  Herrin,  4  Bush,  624: 

562. 
Carroll  v.  Boston  Ins.  Co.,  8  Mass. 
515:  609. 
V.  Ellis,  63  Cal.  440:  140. 
V.  Evans,  27  Tex.  262:  145. 
V.  Perry,  4  McLean,  25  :  953. 
V.  Safford,  3  How.  441 :  939,  953. 
Carruth  v.  Grassie,  11  Gray,  211 :  810. 


TABr.E    OF    CASES, 


XXIX 


Carson  v.  Arkansas,  15  How.  (U.  S.) 
513:  677. 
V.  Browder,  2  Lea,  701 :  629. 
V.  Kelly,  57  Tex.  380 :  597. 
Carswell  v.  Hartridge,  55  Ga.  412  :  355. 
Carter  v.  Carter,  20  Fla.  558:    541, 
835,  869,  902. 
V.  Chambers,  79  Ala.  223 :  901. 
V.  Champion,  8  Ct.  549  :  304. 
V.  Coleman,  84  Ala.  256 :  920. 
V.  Goodman,   11  Bush,  228 :  559. 
V.  Hawkins,  62  Tex.  393 :  568. 
V.  Hicks,  2  Lea,  511 :  348. 
V.  Hinkle,  13  Ala.  529 :  789. 
V,  McManus,   15   La.    Ann,  676 : 

165. 
V.  Randolph,  47  Tex.    379 :    459, 

600,  603,  621.  712. 
V,  Sommermeyer,   27   Wis,   665 : 
180. 
Cartwright  v.  Bessman,  73  Ga,  189 : 

777. 
Carty  v.  Drew,  46  Vt  346 :  764,  785. 
Carver  v,  Lassallette,   57  Wis,   232 : 

409. 
Cary  v,  Tice,  6  Cal.  626 :  178,  211,  580. 
Case  V,  Dunmore,  23  Pa.  St,  93 :  507, 
513,  542,  547. 
V.  Fish,  58  Wis.  56 :  874. 
Casebolt  v,  Donaldson,  67  Mo,  308 : 

33,  119,  317,  668,  670, 
Casey  v,  Yasser,  50  I  ed,  258 :  941. 
easier  v,  Byers,  28  111.  App.  128 :  44. 
Cason  V.  Bone,  43  Ark.  17 :  868,  914. 
Casper  v.  People,  6  111.  App.  28 :  854 
Cass  V.  Martin,  6  N,  H,  25 :  616. 
Cassell  V.  Williams.   12  111.  387 :  516, 

536,  781,  919. 
Casselman  v.  Packard,  16  Wis.  114: 

147,  180,  188,  240,  275. 
Castle  V.  Palmer,  6  Allen,  401 :  258, 

395,  516. 
Castleberry  v.  Maynard,  95  N.  C.  281 : 

480, 
Caswell  V.  Keith,  12  Gray,  351 :  798. 
Catton  V.  Talley,  22  Kas.  256 :  478. 
Cavender  v.  Smith,  8  la.  360 :  620. 
Cearfoss  v.  State,  42  Md.  406 :  25. 
Chafee  v,  Rainey,  21  S,  C,  11 :  78. 


Chaffe  V.  McGehee,  38  La.  Ann.  278 : 

178, 
Chalfant  v.  Grant,  3  Lea,  118:  137. 
Chalmers  v,  Turnipseed,  21  S,  C.  136 : 

657, 
Chamberlain  v.  Brown,  33  S.  C.  597 : 

62,  78,  79,  648, 
V.  Darrow,  46  Hun,  48 :  771, 
V.  Lyell,  3  Mich.  458 :  401,  571. 
Chambers  v.  Cox,  23  Kas.  395 :  386. 
V.  Perry,  47  Ark.  400 :  728,  729, 

730,  734,  863,  868,  888. 
V.  Sallie,  29  Ark,  412:  297,  516, 

519,  522, 
Chambliss  v,  Jordan,  50  Ga.  81 :  41, 

297, 
V,  Phelps,  39  Ga.  386 :  91,  280,  729. 
Chandler  v.  Ford,  3  Ad,  &  E,  649 :  393. 

V.  Jost,  81  Ala.  411 :  697. 
Chant  V.  Reynolds,  49  Cal.  213 :  928. 
Chapin  v.  Hoel,  11  111.  App.  310 :  852, 

854. 
Chaplin  v.  Sawyer,  35  Vt,  290 :  617. 
Chapman  v,  Lester,  12  Kas,  592 :  412. 

V.  Peebles,  84  Ala,  283 :  553, 
Chappell  V.  Spire,  106  111.  473 :  404, 
Charles  v,  Charles,  13  S.  C,  385 :  279, 

756, 
Charles  River  Bridge  Case,  11  Pet 

538:  768, 
Charless  v.  Lamberson,  1  la,  435 :  179, 

192, 
Charpentier  v.  Bresnahan,  62  Mich. 

360:  775, 
Chase  v.  Abbott,  20  la.  154 :  269,  346, 

381,  402, 
Chatten  v.  Snider,  126  Ind.  387 :  849. 
Cheatham  v,  Jones,  68  N,  C.  153 :  119, 

120,  679. 
Cheney  v.  Rodgers,  54  Ga.  168:  11, 

64,  171,  393,  442,  687, 
V.  Rosser,  59  Ga.  861 :  441. 
V,  White,  5  Neb.  261 :  950, 
Chenowith  v,  Chenowith,  14  Ind,  2 : 

75, 
Chesney  v.  Francisco,  12  Neb.   626: 

786. 
Chicago,  etc.  R.  Co.  v.  Anderson,  42 

Kas,  297 :  751. 


XXX 


TABLE    OF   CASES. 


Chicago,  etc.  R  ('o.  v.  Mason,  11  111. 

App.  525 :  900. 
V.  Moore  (Neb.),  48  N.  W.  475  :  900. 
V.  Raglaud,  84  III.  375 :  900. 
V.  Svviuuey,  38  la   182 :  353,  354, 

386,  945. 
V.  Titteriugton  (Tex.),  19  S.   W. 

472:  386. 
Chilcote  V.  Coiiley,  36  O.  St.  547  :  419, 

828. 
Child  V.  Siugletou,  15  Nev.  461 :  170, 

171,  238. 
( liilders  v.  Henderson,  76  Tex.  664 : 

599,  658,  659,  704. 
Chilson  V.  Reeves,  29  Tex.  276:  626, 

709,  747. 
Chipman    v.  McKinney,  41  Tex.  76 : 

294,  304. 
Chisholm  v.  Chisholm,  41  Ala.  327 : 

615. 
Chism  V.  Chism,  41  Ala.  327 :  788. 
Choen  v.  Porter,  66  Ind.  194 :  915. 
Choice  V.  Charles,  7  S.  C.  171 :  729. 
Chopin    V.  Runte,  75   Wis.   361 :  80, 

356,  362. 
Christy  v.  Dyer,  14  la.  438:  179,   192, 

333,  352,  355,  404. 
V.  Pridgion,  4  Wall.  196 :  51. 
Church  V.  Chapin,  35  Vt.  223:  519, 

711. 
V.  Hay,  93  Ind.  323:  916. 
V.  Holconib,  45  Mich.  41 :  880. 
Chynoweth  v.  Teuney,   10  Wis.  397 : 

874. 
Cilinger's  Appeal,  35  Pa-  St.  537  :  583. 
Cipperly  v.  Rhodes,  53  III.  346 :  509, 

524. 
Citizens'  Bank  v.  Bowen,  25  Kas.  117 : 

262. 
Citizens'  N.  Bank  v.  Green,  78  N.  C. 

247 :  242,  793. 
City  Bank  v.  Huie,  1  Rob.  ( La.)  236 : 

32. 
V.  Smisson,  73  Ga.  423 :  85,  488, 

526,  561. 
City  of  Atlanta  v.  Word,  78  Ga.  276 : 

442. 
City  of  New  Orleans   v.   Robira,   43 

La.  Ann.  1102:  766. 


Claghorn  v.  Saussy,  51  Ga.  576 :  826. 
Clancy  v.  Stephens,  92  Ala,  577 :  163, 

637,  696. 
Clapp  V.  Thomas,  5  Allen,   158 :  309, 

882. 
Clark  V.  Allen,  87  Ala.  198:   405,  408. 
V.  Anthony,   31   Ark.   546 :    520, 

865. 
V.  Averill,  31  Vt.  512 ;  880. 
V.  Bailey,  5  Or.  343 :  947. 
V.  Bell,  67  Ga.  728:  122,  697. 
V.  Bond,  7  Bax.  288 :  780. 
V.  Burnside,  15  111.  62 :  621. 
V.  Clark,    17   How.  ( U.  S.)  315 : 

709. 
V.  Crosby,  6  111.  App.  102 :  266. 
V.  Estate  of  Conroe,  38  Vt.  469 : 

945. 
V.  Evarts,  46  la.  248 :  47,  394,  427, 

549. 
V.  Mayor,  29  Md.  283 :  24 
V.  Muuroe,  14  Mass.  351 :  340. 
V.  Nolan,  38  Tex.  416 :  226,  .598, 

629. 
V.  Potter,  13  Gray,  21 :  279. 
V.  Schatz,  24  Minn.  300 :  365. 
V.  Shannon,  1  Nev.  568 :  185,  188, 

212,  232,  236. 
V.  Snodgrass,   66   Ala.   233:    20, 

229,  667. 
V.  Spencer,  75  Ala.  49 :  20,   209, 

408,  555,  673,  696,  871. 
V.  Trawick,  56  Ga.  359 :  11,  279, 

355,  725. 
V.  Utica,  18  Barb.  451 :  26. 
Clarkin  v.  Lewis,  20  Cal.  634 :  485. 
Clay  V.  Richardson,  59  la.  483 :  427. 
Claybrooks  v.  Kelly,  61  Tex.  634  :  356. 
Clearfoss  v.  State,  42  Md.  406 :  32. 
Cleaver  v.  Bigelow,  61  Mich.  47 :  121, 

138,  141,  685. 
Clegg  V.  Houston,  1  Phila.  353 :  143, 

905. 
Cleghorn  v.  Greeson,  77  Ga.  343 :  554, 

870. 
Clem  V.  State,  33  Ind.  418 :  27. 
Clement  v.  Lee,  47  Ga.  626 :  817. 
Clements  v.  Lacy,  51  Tex.  156 :  138, 
142,  194,  304,  346,  353,  570. 


TABLK    OF    CASES. 


XXXI 


("lements  v.  Stanton,  47  Cal.  60:  164, 

170. 
Clift  V.  Kaufman,  60  Tex.  64 :  252. 
Cline  V.  Upton,  59  Tex.  27 :  357,  562, 

738. 
Clingman  v.  Kemp,  57  Ala.  195 :  914, 

916. 
Clint  V.  Upton,  56  Tex.  320 :  253. 
Clinton  v.  Estes,  20  Ark.  216 :  520. 

V.  Kidwell,  82  111.  429 :  771. 
Close  V.  Sinclair,  38  O.  St.  530  :  871. 
V.  Stuyvesant,  132  111.  607 :  953. 
Cloud   V.    Inhabitants,   86  Mo.    357: 

647. 
V.  Kendrick,  82  Ga.  730 :  241. 
Clubb  V.  Wise,  64  111.   157:  61,  123, 

586. 
Coach  V.  McKee,  6  Ark.  484 :  768. 
Goad  V.  Neal,  55  la.  528 :  438. 
Coates  V.  Caldwell,  71  Tex.   19 :  169, 

181,  241. 
V.  Gerlach.  44  Pa  St.  43:  397. 
Cobb  V.   Hallyburton,  92  N.  C.  652 : 

679. 
V.  Smith,  88  111.  199 :  562. 
Cobbey  v.  Knapp,  23  Neb.  579 :  397. 
Cobbsv.  Coleman,  14  Tex.  594:  62, 

114,  808. 
( -ochran  v.  Darcy,  5  S.  G.  125 :  279. 
V.  Harvey  (Ga.).  14  S.  E.  580 :  817. 
V.  Miller,  74  Ala.  50 :  19,  20,  227. 
Cochran's  Adm'r  v.  Sorrell,  74  Ala, 

310:  615. 
Cockrell  v.  Curtis  (Tex.),  18  S.   W. 

436 :  66,  695. 
Coe  V.  Smith,  47   111.   225 :  266,   267, 

405. 
Coflfee  V.  Adams,  65  Ga.  347:    122, 

777,  811. 
Coffey  V.  Joseph,  74  Ala.  271:  458, 

615,  627,  636,  703,  706. 
V.  Wilson.  65  la.  270 :  817. 
Coffin  V.  Reynolds,  37  N.  Y.  640 :  824. 

V.  Rich,  45  Me.  507 :  25,  33. 
Coffman  v.  Bank  of  Kentucky,    40 

Miss.  29 :  279. 
Cogan  V.  Christie,  48  Ga.  585 :  442. 
Cogel  V.  Mickow,  11  Minn.  354 :  295, 

362. 


Cohen  v.  Davis,  20  Cal.  187  :  170,  212, 
672. 
V.  Sharp,  44  Cal.  29 :  953. 
Cohn  V.  Hoffman,  45  Ark.  376:  306. 
Coker  v.  Roberts,  71  Tex.  598:  384, 

388. 
Colbert  v.  Henley,  64  Miss.  374 :  149. 
Colby  V.  Crocker,  17  Kas.  527 :  194. 

410,  412,  551,  724. 
Cole  V.  Bank,  59  N.  H.  53,  321 :  187, 
559. 
V.  Cunningham,  133  U.  S.  107 : 

888,  890. 
V.  Favorite,  67  lU.  457 :  748. 
V.  Gill,  14  la  527 :  164,  179,  192, 

333. 
V.  Green,  21  III.  103 :  776. 
V.  La  Chambre,  31  La  Ann.  41 : 

145. 
V.  Van  Riper,  44  111.  63-4 :  46. 
Coleman's  Appeal,   103  Pa  St.  366: 

850,  866. 
Coleman  v.  Allen,  75  Mo.  332 :  953. 
V.  Ballandi,  22  Minn.   144 :    295, 

362. 
V.  Brooke,  37  Miss.  71 :  788. 
V.  Hatcher,  77  Ala.  217 :  852. 
V.  Hill,  44  Ark.  452 :  953. 
V.  McCormick,  37  Minn.  179 :  953. 
V.  Smith,  55  Ala.  368 :  428. 
Coles  V.  Yorks,  36  Miun.  388 :  675,  676. 
College  V.  Harrison,  9  B.  &  C.  534  :  41. 
Colleuder  Co.  v.  Marshall,  57  Vt  232 : 

418. 
Collett  v.  Jones,  2  B.  Mon.  19 :  873, 

874. 
Colley  V.  Duncan,  47  Ga  668:  648, 

755. 
Collier  v.  Latimer,  8  Bax.  420:  808. 
V.  Mmphy,  90  Tenn.  300 :  831. 
V.  Simpson,  74  Ga  697  :  366,  550. 
V.  Wood.  85  Ala  91 :  716,  874. 
Collins  V.  Boyd,  56  Pa  St  402 :  888. 
V.  Boyett,  87  Tenn.  334 :  35.  206, 

582. 
V.  Chantland,  48  la  241 :  591,  718. 
V.  Nichols,  5  Ind.  447 :  888. 
Colquitt  V.  Brown,  63  Ga  440:  329, 
330. 


XXXll 


TABLE    OF    CASES. 


ColsoQ  V.  Wilson,  58  Me.  416:   309, 

729,  882. 
Colter  V.  Morgan,  12  B.   Mon.  278: 

391. 
Columbia   Ins.  Co.   v,  Lawrence,  10 

Pet.  507 :  609. 
Colvin   V.  Woodward,  40  La.  Ann. 

627:  555. 
Colwell  V.  Carper,  15  O.  St.  279:  115, 

786,  874. 
Comfort  V.  Mason,  96  Mo.  127:  910. 
Commercial  Bank  v.  Corbett,  5  Saw. 

547 :  170,  171. 
Com.  Nat  Bank  v.  Chicago,  etc.  R. 

Co.,  45  Wis.  172 :  898. 
Commissioners  v.  Riley,  75  N.  C.  144 : 

864,  918. 
Commonwealth  v.  Baldwin,  1  Watts, 

54:  14. 
V.  Boyd,  56  Pa.  St  402 :  778. 
V.  Cook,  8  Bush,  220 :  14,  327. 
V.  Ford,  29  Gratt  683,  687 :  13, 

326. 
V.  Lay,  12  Bush,  283 :  327. 
V.  Liquors,  108  Mass.  19 :  32. 
V.  New  Bedford  Bridge,  2  Gray, 

339:  767. 
Comparet  v.  Hanna,  34   Ind.  74-8 : 

747. 
Compher  v.  Compher,  25  Pa.  St  31 : 

788. 
Compton  V.  Patterson,  28  S.  C.   115: 

279,  280. 
V.  Pierson,  28  N.  J.  Eq.  229 :  45. 
Comstock   V.  Adams,   23  Kas.   524: 

449,  462. 
V.  Comstock,   27  Mich.  97:    353, 

472,  526,  546,  688. 
Conant  v.  Van  Schaick,  24  Barb.  87 : 

767. 
Cone  V.  Lewis,  64  Tex.  332 :  785. 
Conklin  v.   Foster,  57   111.    107:  112, 

115,  120,  265,  495,  730. 
Conley  v.  Chilcote,  25  O.  St  324:  419, 

883,  896. 
Conn  V.  Conn,  58  la.  747 :  593,  622. 
Connally  v.  Hard  wick,  61  Ga.  501 :  64. 
Connaughton  v.  Sands,  32  Wis.  387 : 

30,  59,  80,  568. 


Council  V.   Chandler,    11   Tex.  249: 
627. 
V.  Fisk,  54  Vt  381 :  809. 
Connelly  v.  Doe,  8  Blackf.  320 :  379. 
Connor  v.  McMurray,  2  Allen,  202: 
44,  384,  419,  422,  560. 
V.  Nichols,  31  III.  148 :  329,  419. 
Conover  v.  Mut  Ins.  Co.,  1  N.  Y.  290 : 

950. 
Consolidated  Tank  Co.  v.  Hunt  (la.), 

48  N.  W.  1057 :  806. 
Convery  v.  Langdon,  66  Ind.  311 :  831. 
Conway  v.  Elgm,  38  Minn.  469 :  353. 
V.  Sullivan,  44  111.  451:    10,  61, 

265,  324,  761. 
V.  Wilson,  44  N.  J.  Eq.  457 :  873. 
Conwell  V.   Conwell,   100   Ind.  437: 

850,  890. 
Cook  V.  Baine,  37  Ala.  350 :  863. 

V.  Bohl,  8  111.  App.  293 :  853,  854. 
V.  Crocker,  53  Ga.  66 :  729. 
V.  Klink,  8  Cal.  347 :  608,  685. 
V.  Meyer,  73  Ala.  580,  583 :  45. 
V.  McChristiau,  4  Cal.  23 :  41,  164, 

211,  212,  280,  564. 
V.  Moffat  5  How.  (U.  S.)  316 :  767. 
V.  Newman,  8  How.  (N.  Y.)  523: 

292. 
V.  Norton,  48  111.  26:  737. 
V.  Scott,  6  111.  333 :  777,  778,  781, 

784,  919. 
V.  Walthall,  20  Ala.  334:  914. 
V.  Webb,  18  Ala.  810:  696. 
Cooke  V.  Gibbs,  3  Mass.  193 :  795. 
Coolidge  V.  Wells,  20  Mich.  87 :  196, 

304. 
Coon  V.  Jones,  10  la.  132 :  719. 
Cooney  v.  Cooney,  65  Barb.  524 :  445. 
Coons  V.  Tome,  9  Fed.  532 :  351. 
Cooper  V.  Basham  (Tex.),  19  S.  W. 
704:  562. 
V.  Cooper,  24  O.  St  488 :  94,    96, 

230,  580. 
V.  Corbin,  105  111.  224 :  329. 
V.  Maupin,  6  Mo.  634 :  860. 
V.  Neuman,  45  N.  H.  339 :  806. 
V.  Payne,  36  111.  App.  155 :  850. 
V.  Reeves,  13  lud.  53:  888. 
V.  Singleton,  19  Tex.  260  :  597,  600. 


TABLE    OF   CASES. 


XXXlll 


Coosa  River  Steamboat  Co.  v.  Bar- 
clay, 30  Ala.  120 :  767. 
Copeland   v.  Sturtevant   (Mass.),    30 

N.  E.  475 :  709. 
Copp  V.  Williams,  135  Mass.  401 :  792, 

882. 
CJoppage   V.   Gregg   (Ind.),    27  N.  E. 

570:  830. 
Corbett  v.  Wood,  32  Minn.  509 :  927. 
Corcoran  v.  Canal  Co.,  94  U.  S.  741 : 

608. 
Cordier  v.  Cage,  44  Tex.  532 :  598. 
Coriell  v.  Ham,  4  Greene  (la.),  458: 

767. 
Cornelia  v.  Ellis,  11  111.  584:  783,  859. 
Cornelius    v.   Kessel,    58   Wis.   237: 

940. 
Cornell  v.  Dakin,  38  N.  Y.  253 :  858. 

V.  Kitchens,  11  Wis.  368 :  767. 
Corner  v.  Bourg,  26  La.  Ann.  615 : 

636. 
Corning  v.  Rinehart  Medicine  Co.,  46 

Mo.  App.  16 .  913. 
Cornish  v.  Frees,  74  Wis.  490 :  135. 
Corp  V.  Griswold,   27   la.   379:  803, 

807,  811. 
Corpening  v.  Kincaid,  82  N.  C.  202 : 

489,  678. 
Corr  V.  Shackelford,  68  Ala  241 :  358, 

639.  702. 
Cotton  V.  Hamil,  58  la.  594 :  558. 

V.  Wood,  25  la.  43 :  591. 
Coughlin  V.  Coughlin,  26  Kas.   116 : 

386,  434. 
Courie  v.  Goodwin,  89  Ala.  569 :  557, 

868,  888,  884. 
Courier  v.  Sutherland,  54  N.  EL  475 : 

874. 
Covanhovan  v.  Hart,  21  Pa.  St.  495 : 

524. 
Coville  V.  Bentley,  76  Mich.  248 :  781. 
Cowan  V.  Creditors,  77  Cal.  403 :  904. 

V.  Main,  24  Wis.  569 :  817. 
Cowdrey  v.  Cow  drey,  131  Mass.  186 : 

260,  615,  616. 
V.  Hitchcock,  103  111.   262 :   265, 

621. 
Cowell  V.  Lammers,  10  Saw.  246 :  135, 

933. 


Cowgell  V.  Warrington,  66  la.  666 : 

47,  384,  394,  438,  571. 
Cox  V.  Berry,  13  Ga.  306 :  767. 
V.  Bridges,  84  Ala.  553 :  637. 
V.Donnelly,   34   Ark.   762 :   947, 

951. 
V.  Holcomb,  87  Ala.  589 :  427. 
V.  Milner,  23  III  423 :  309. 
V.  Shropshire,  25  Tex.  113 :  514, 

530,  579. 
V.  Stafford,  14  How.  (N.  Y.)  521  :. 
59,  64.  * 

V.  Wilder,  2  Dill.  45 :  516, 522,  533, 
535. 
Coyle  V.  Succession  of  Creevy,  34  La. 

Ann.  539 :  39. 
Crabb  v.  Potter  (Ky.),  14  S.  W.  501 : 

588. 
Crabtree  v.  Whiteselle,  65  Tex.   Ill, 

114:  194. 
Cracken  v.  Alder,  98  N.  C.  400 :  367. 
Craddock  v.  Edwards,  81   Tex.  609 : 

272,  567,  599. 
Craft  V.  Stouz  (Ala.),  10  So.  677 :  837. 
Crauch  v.  Gridley,  6  Hill,  250 :  914. 
Crandell  v.  Nevada,  6  Wall.  35 :  13. 
Crane  v.  Linneus,  77  Me.  61 :  840. 
V.  Salmon,  41  Cal.  63 :  607. 
V.  Stickles,  15  Vt.  252 :  711. 
V.  Waggoner,  33  Ind.  83 :  121, 229, 
398,  739. 
Cranz  v.  White,  27  Kan.  319 :  840. 
Crawford  v.  Coil,  69  Mo.  588 :  815. 
V.  Lock  wood,  9  How.  Pi-.  (N.  Y.) 

547 :  541. 
V.  Richeson,  101  111.  351 :  194,  201, 
213,  723. 
Creager  v.  Creager,  87  Ky.  449 :  205, 

286,  419. 

Creath  v.  Creath.  86  Teun.  659 :  583. 

V.  Dale,  84  Mo.  349:  171,  291. 

v.  Dale,  69  Mo.  41 :  668,  670. 

Creecy  v.  Pierce,  69  N,  C.  67 :  117, 119, 

120. 
Cribben  v.  Cribben  (111.),  27  N.  E.  70 : 

658. 
Crim  v.  Nelms,  78  Ala.  604 :  393,  577. 
Crmimins  v.  Morrisey,  36  Kas.  447 : 
656. 


XXXI V 


TABLE    OF    OASES. 


Crisp  V.  Crisp,  86  Mo.  G;30 :    666,   670, 

675. 
Crocker  v.  Pierce,  31  Me.  177 :  309. 
Crockett  v.  Gray,  31  Kas.  346 :  672. 
V.  Templeton,  65  Tex.   134:  147. 

148. 
Croft  Brothers,  8  Biss.  188 :  907. 
Croker   v.    Spencer,   3  D.   Chip.    68: 

818. 
Cromwell  v.  Owings,  7  Harr.  &  J.  55 : 

860. 
Cronan  v.  Honor,  10  Heisk.  353 :  873, 

874. 
Crosby  v.  Stephan,  32  Hun,  478 :  837. 
Croskey  v.  Northwestern  Co.,  48  111. 

481:  364. 
Cross  V.  Armstrong,  44  O.   St.   613  : 

837. 
V.  Evarts,  28  Tex.   532 :  44,   388, 

399,  419,  423,  567.  568. 
V.  Weare,  62  N.  H.  125  :  261,  625. 
Croup  V.  Morton,  49  la.  16  ;  53  la.  599  : 

122. 
Crout  V.  Santer,  13  Bush,  442 :  551. 
Crow  V.  Brown,  81  Ala.  344 :  838. 
V.  Whitworth,  20  Ga.  38 :  729. 
Crum  V.  Sawyer,   132  111.  443:   398, 

542. 
Crumb   v.    Hambleton,  86  Mo.  501: 

933. 
Cruramen  v.  Bennet,  68  N.  C.  494: 

120,  493,   515,  516,  532,   533, 

535,  855,  918. 
Cruz  V.  Martinez,  53  Cal.  239:  941. 
Culbertson  v.  Cox,  29  Minn.  309 :  608. 
Cullam  V.  Cooper  (Tenn.),  Dec.  Term, 

1888:  71. 
Cullers  V.  James,  66  Tex.  498 :  257. 
Culver  V.  Rogers,  28  Cal.   520:  274, 

294,  509,  953. 
Culvitt  V.  Williams,  35  La.  Ann.  325: 

297. 
Gumming   v.   Bloodworth,   87  N.  C. 

83  :  228,  365,  480. 
Cummings  v.  Busby,  62  Miss.   195 : 

380,  559. 
V.  Cheshire  Ins.  Co.,  55  N.  H.  457 : 

609. 
V.  Cummings,  51  Mo.  261 :  464. 


Cummings  v.  Johnson,  65  Miss.  342< 
347:  r.iM. 
V.  Long,  16  la-  41 :  298,  675. 
Cumnock  v.  Wilson  (Neb.),  50  N.  W. 

959 :  548,  754. 
Cunningham  v.  Butler,  142  Mass.  47 : 
889. 
V.  Conway,  25  Neb.  615:  786,857. 
V.  Freeborn,  3  Paige.  557 :  424. 
V.  Gamble,  57  la.  46 :  593,  622. 
V.  Hanney,  12  111.  App.  437 :  45. 
Curlee  v.  Thomas,  74  N.  C.  51 :  716, 

833. 
Curran  v.  Arkansas,  15  How.  (U.  S.) 
304:  768. 
V.  Gulp  (Ky.),  15  S.  W.  657 :  563. 
Currier  v.  Earl,  1  Shep.  216 :  392. 
V.  Sutherland,  54  N.  H.  475,  487 : 
7,  182,  516,  521,  535,  729,  919. 
V.  Woodward,  62  N.  H.  66:  28, 
189. 
Curtis   V.  Des   Jardins,  55   Ark.  120 : 
315,  756. 
V.  O'Brien,  20  la.  376 :  541,  869. 
V.  Root,  20  111.  57 :  352,  355. 
Cusic  V.  Douglas,  3  Kas.  123 :  41,  280. 
Cutting   V.   Tappan,   59  N.    H.   562: 

808. 
Cutts  V.  Hardee,  38  Ga.  350 :  767. 


D. 


Dailey  v.  May,  5  Mass.  313  :  798. 
Dains  v.  Prosser,  32  Barb.  291 :  779, 

805. 
Dalton  V.   Webb  (la.),  50  N.  W.  58  : 

439. 
Daly  V.  Willis,  5  Lea,  100 :  607. 
Damman   v.   Com.   School   Lands.    I 

Wis.  (*414)  432 :  768. 
Dana  v.  Stanfords,  10  Cal.  269:  524. 
Danaher   v.    Prentiss,    22   Wis.    299: 

747. 
Danforth  v.  Beattie,  43  Vt.  138 :  138, 

516. 
V.  Wear,  9  Wheat.  673 :  406. 
V.  Woodward,  10  Pick.  423:  37, 

802. 
Daniel  v.  Bush,  80  Ga.  218 :  362. 


TABLE   OF   CASES. 


XXXV 


Daniels  v.  Hamilton,    52    Ala.   108 : 
778. 
V.  Lowry,  96  Ala.  519 :  427. 
V.  Man,  75  Me.  397 :  899. 
V.  Morris,  54  la.  3G9 :  74,  746. 
Danley  v.  Rector,  10  Ark.  225 :  518. 
Danvers  v.  Boston,  10  Pick.  513 :  38. 
Darby  v.   Rouse  (Md.),   22   A,    1110: 

873,  875. 
Dardeu  v.  Reese,  62  Ala.  311 :  828. 

V.  Reese,  62  Ala.  34 :  790. 
Darrah  v.  Cunningham,  72  la.  123 : 

464,  466,  594. 
Darst  V.  Bates,  95  111.  493 :  403. 
Dart  V,  Woodhouse,  40  Mich.   399: 

819. 
Daudt  V.  Harmon,  16  Mo.  App.  203 : 
288,  707,  713,  751. 
V.  Music,  9   Mo.  App.  169 :   464, 
637. 
Davenport  v.  Alston,  14  Ga  271 :  112, 
170,  21.3,  535.  672. 
V.  Brooks,  92  Ala.  627 :  789. 
V.  Devereux,    45  Ark.   343 :  573, 

621. 
V.  Hicks,  54  Vt.  23 :  354. 
V.  Swan,  9  Humph.  186 :  880. 
David  V.  David,  56  Ala.  49 :  158. 
Davidson  v,  Davis,  86  Mo.  440 :  457, 
464,  637. 
V.  Sechrist,  28  Kas.  324 :  797,  800. 
Davis'  Appeal,  34  Pa.  St.  256 :  788. 
Davis  v.  Andrews,  30  Vt.  683 :  182, 
192,  215.  401,  472.  572. 
V.  Curry,  85  Ala.  133 :  697. 
V.  Day  (Ark.),  19  S.  W.  502 :  306. 
V.  Garret,  3  Iredell,  459 :  309. 
V.  Givens,  71  Mo.  94 :  135. 
V.  Hays,  89  Ala.  563 :  884. 
V-.  Henson,  29  Ga.  345 :  322,  323, 

761. 
V.  Kelley,  14  la.  523 :  562,  568. 
V-.  Land,  88  Mo.  436 :  121,  289,  515, 

603. 
V.  McCartney,  64   Tex.   584 :   84, 

96. 
V.  Meredith,  48  Mo.  263 :  823. 
v.  Murphy,  126  Mass.  145  :  136. 
V.  Prosser,  32  Barb.  290 :  865. 


Davis  V.  Rupe,  114  Ind.  588:  767. 
V.  Scott,  56  Cal.  165:  13.5,  933. 
V.  Tallot,  12  N.  Y.  184 :  747. 
V.  Webster,  59  N.  H.  471 :  808. 
V.  Wetherell,  13  Allen,  60 :  715. 
Davis,  etc.  Co.  v.  Whitney,  61  Mich. 

518:  685. 
Davlin  v.  Stone,  4  Cush.  359 :  792. 
Dawley  v.  Ayers,  23  Cal.  108 :  63. 
Dawson  v.  Burrus,  73  Ala.  Ill:  428. 
V.  Hayden,  67  111.  52 :  266,  373. 
V.  Holt,  44  Tex.  174 :  61,  598. 
V.  Merrille,  2  Neb.  119:  947. 
Day  V.  Adams,  42  Vt.   517:  626,  633, 

657. 
Dayton  v.  Donart,  22  Kas.  256 :  385, 

462,  478,  630.  650. 
Dean  v.  Clark,  8  la.  753 :  838. 

V.  De  Wolf,  16  Hun,  186 :  824. 
v.  King,  13  Ired.  20 :  436,  818. 
V.  McAdams,  22  Kas.  544 :  365. 
Dearborn  v.  Phillips,   21   Tex.   449: 

809. 
Dearing  v.  Thomas,  25  Ga.  224 :  212, 

672. 
Deariuger  v.  Ridgeway,  34  Ind.  54 : 

916. 
Dease  v.  Cooper,  40  Miss.  114  :  627. 
Deatherage  v.  Walker,  1 1  Heisk.  45 : 

546. 
De  Bruhl  v.  Maas,  54  Tex.  464 :  346, 

354. 
Decatur  Mercantile  Co.  v.  Deford,  93 

Ala.  347  :  848,  879. 
Decuir  v.  Benker,  33  La.  Ann.  320 : 

59. 
Deere  v.   Chapman,  25  111.  498:  31, 

112,  116,  226,  266. 
Deering  v.  Beard  (Kas.),  28  P.  981 : 
567. 
V.  RuflFner  (Neb.),  49  N.  W.   771 : 
826. 
Deeter  v.  Sellers,  102  Ind.  458:  905, 

906. 
Deffeliz  v.  Pico,  46  Cal.  289 :  740. 
Defferback  v.  Hawke,  115  U.  S.  392: 

953. 
De  Grafifenreid  v.  Clark,  75  Ala.  425 : 
182,  393,  408,  718. 


IXXVl 


TABLE   OF   CASES. 


De  Hart  v.  Hann,  130  Ind.  878:  760, 

914. 
Dehon  v.  Foster,  7  Allen,  57 :  890. 
De  Hymel  v.  Mortgage  Co..  80  Tex. 

493 :  343,  722. 
Dei  V.  Habel,  41  Mich.  88 :  586,  615. 
De  La  Howe  v.  Harper,  5  S.  C.  470 : 

279. 
De  Land  v.  Day,  45  la.  37 :  933,  933. 
Delashmut  v.  Trau,  44  la.  613:  515, 

530. 
Delavan  v.  Pratt,  19  la.  429 :  283,  363, 

675.  704. 
Delliuger  v.  Tweed,  66  N.  C.  206 :   18, 

325,  761. 
Deltzer  v.  Scheuster,  37  111.  301 :  605. 
Deming  v.  Williams,  26  Ct  226:  397. 
Den  V,  Harden  burgh,  10  N.  J.  L  42 : 

142. 
Dendel  v.  Sutton,  20  Fed.  787  :  417. 
Deudy  v.  Gamble,  64  Ga.  528 :  58,  59. 
Denegre  v.  Haun,    14  la.   240:   715, 

727. 
Denis  v.  Gayle,  40  La.  Ann.  391 :  9, 

178,  293,  297,  298,  299. 
Denni  v.  Elliott,  60  Tex.  337 :  340. 
Dennis  v.  Omaha  N.  Bank,  19  Neb. 

675:  561. 
V.  Railroad  Co.,  34  La.  Ann.  958: 

766. 
V.  Wilson,  107  Mass.  591 :  143. 
Denny  v.  White,  3  Cold.  284:  541. 
Denton  v.  Reading,  22  La.  Ann.  607 : 

25, 
Dentzel  v.  Waldie,  30  Cal.  138 :  555. 
Deposit  Bank  v.  Wickham,  44  How. 

421:  795. 
Derr  v.  Wilson,  84  Ky.  14 :  372,  373, 

470. 
Desmond  v.  State,  15  Neb.  438 :  786, 

869,  881. 
Deville  v.  Widoe,  64  Mich.  593,  596 : 

197,  294. 
DeVries  v.  Conklin,  22  Mich.  255: 

45. 
Dewhurst  v.    Wright    (Fla.),   10  So. 

702 :  270. 
Dewitt  V.   Sewing   Machine  Co.,  17 

Neb.  533 :  19,  893. 


Deyton  v.  Bell,  81  Ga.  370 :  70,  632. 
Diamond  v.  Palmer,  79  la.  578 :  838. 
Dick  V.  Powell.  3  Swan  (Tenu.),  633: 

346. 
Dickens  v.  Long,  109  N.  C.  105:  702. 
Dickerson  v.  Cayroll,  76  Ala.  377  :  665. 
Dickinson  v.   Mayer,   11   Heisk.  515 : 

31,  35,  206,  567. 
V.  McLaue,  57  N.  H.  31 :  44,  383, 

394,  419,  439. 
Dickman  v.  Birkhauser,  16  Neb.  686 : 

583. 
Dickson  v.  Chorn,  6  la,  19 :  296,  410. 
Dieffenderfer    v.   Fisher,   3    Grant's 

Cases,  30 :  536,  778. 
Diehl  V.  Holben.  39  Pa.  St.  213 :  778, 

847. 
Dikeman   v.  Arnold,  71   Mich.    656: 

353. 
Dilger  v.  Palmer,  60  la.  117 :  715. 
Dilla  V.  Bohall,  53  Cal.  709 :  943. 
Dillinger's  Appeal,   35  Pa.    St.  357: 

789. 
Dillingham  v.  Fisher,  5  Wis.  475  :  950. 
Dillman  v.  Will  Co.  Bank,  36  III  App. 

272:  618,  720,  758. 
Dillon  V.  Byrne,  5  Cal.  455 :  346,  404, 

717,  912. 
V.  Kauflfman,  58  Tex.  696 :  340. 
Dingman  v.  Raymond,  37  Minn.  507  : 

803. 
Dipert  v.  Jones  (Ind.),  30  N.  E.  419 : 

863. 
Discus  V.  Hall,  83  Ala.   159 :  65,  158, 

270. 
Dismuke  v.  Eady,  80  Ga.  289 :  98. 
Ditson  V.  Ditson  (la.),  52  N.  W.  203 : 

574,  614. 
Doane  v.  Doane,  46  Vt.  485 :  117, 119, 

215,  459,  617,  626. 
Dobbins  v.  First  N.  Bank,  112  111.  566  : 

21. 
V.  Commissioners,  16  Pet.  435 :  13. 
Dobbins'  Distillery,  96  U.  S.  395 :  314. 
Dobkins  v.  Kuykendall  (Tex.),  16  S. 

W.  743 :  190. 
Dobson  V.  Butler,  17  Mo.  87 :  96. 
Dodd  V.  Thompson,  63  Ga.  393 :  443. 

814. 


TAHLK    OF    CASES. 


XXXVll 


Dodds  V.  Dodds,  26  la.  371 :  590,  591, 

623,  626. 
Dodge  V.    Knight  (Tex.),    16  S.   W. 

626 :  794,  867,  883. 
Dodson's  Appeal.  25  Pa.  St.  234 :  231, 

668. 
Doherty  v.  Ramsey,  1  Ind.  App.  530 : 

867. 
Dolan  V.   Dolan,  91   Ala.    152:    626, 

627. 
Dollman  v.    Harris,  5  Kas.  597 :  378, 

386,  390. 
Donaldson  v.  Banta  (Ind.),   29  N.   E. 

362  :  10.  323,  759. 
V.  Lamprey,   29   Minn.    18:    181, 

565,  570. 
V.  Voltz,  19  W.  Va.  156:  103. 
Donmeyer    v.    Donmeyer,    43    Kas. 

444 :  787,  806. 
Donner  v.  Redenbaugh,  61   la,   269 : 

395,  427. 
V.  Smith,  24  Cal.  114:  607. 
Dooley  v.   Villalonga,   61    Ala.    129 : 

430,  579. 
Dopp  V.  Albee,  17  Wis.  590 :  41. 
Dorn  V.  Dunham,  24  Tex.  366 :  135. 
V.  Howe,  52  Cal.  630 :  177,  235. 
Dorrell  v.  Hannah,  80  Ind.  497 :  322, 

759. 
Dorrington  v,  Myers,  11   Neb.   388: 

19,  20,  296. 
Dorris  v.  Erwin,  101  Pa.  St.  239 :  45. 
Dorsey  v.  McFarland,  7  Cal.  342 :  385. 
Dortch  V.  Benton,  98  N.  C.  190 :  532. 
Dossey  v.  Pitman,  81   Ala.  381:  20, 

696. 
Douch  V.   Rahner,  61  Ind.   64:  853, 

854,  862,  890,  919. 
Doughty  V.  Sheriff,  27  La.  Ann.  355  : 

170,  172. 
Douglas    V.   Boylston,    69    Ga    186: 

850. 
Douglass  V.  Craig,  13  S.  C.  371 :  279, 

280. 
V.  Freeholders,  38  N.  J.  L.  214 : 

24, 25. 
V.  Gregg,  7  Bax.  384  :  281. 
Douthett  V.  Kettle,  104  111.  356 :   329. 
V.  Winter,  108  111.  330 :  329. 


Dove  V.  Nunan,  62  Cal.  399 :  807.  811. 

824. 
Dow  V.  Cheney,  103  Mass.  181 :  542. 
V.  Smitli,  7  Vt.  465 :  809,  810, 859. 
Downing  v.  Blair,  75  Ala.  216:  428. 

V.  Ruger,  21  Wend.  178 :  41. 
Downs  V.  Downs,  17  Ind.  95:  788. 
Doyle  V.  Coburn,  6  Allen,  71  :  85,  94, 

258,  384,  560,  580,  581. 
Drake  v.  Kinsell,  38  Mich.  232,  237 : 

493. 
V.  Lake    Shore,   etc.    R.   Co.,    69 

Mich.  168,  179:  893,897. 
V.  Moore,  66  la.  58 :  144. 
V.  Painter,  77  la.  731 :  415. 
Dreutzer  v.  Bell,  11    Wis.   114:   516, 

529. 
Drew  V.  Clark,  Cooke  (Tenn.),  374 : 

391. 
Driggs  V.  Norwood,  50  Ark.  42 :  518. 
Drinkwater  v.  Moreman,  61  Ga  395 : 

19. 
Drucker  v.  Rosenstein,  19  Fla,  191, 

199 :  42,  186,  195. 
Drury  v.   Bachelder,  11   Gray,  214: 

580. 
Drye  v.  Cook,  14  Bush,  459 :  433. 
Dubois  V.  Cassidy,  75  N.  Y.  298 :  836. 
Dudley  v.  Shaw  (Kas.),  24  P.  1114: 17, 

374. 
Duff  V.  Duff,  71  Cal.  513 :  164. 
V.  Wells,  7  Heisk.  17 :  832. 
Duffy  V.  Willis,  99  Mo.  132 :  558. 
Dugger  V.  Wright,  51  Ark.  235 :  723. 
Duke  V.  Reed.  64  Tex.  705 :  67, 84,  88, 

96,  459. 
Dulanty  v.   Pynchon,  6   Allen,    510: 

258,  562. 
Dull  V.  Merrill,  69  Mich.  49 :  395,  396. 
Dumbould  V.  Rowley,   113  Ind.  353: 

831. 
Dunbar  v.  Mitchell,  12  Mass.  373 :  258, 

392. 
Duncan  v.  Alexander  (Tex.),  18  S.  W. 

817 :  253. 
V.  Barnett,  11  S.  C.  333 :  157,  848. 
V.  Eastiu,  30  La.  Ann.  1130:  145. 
V.  Frank,  8   Mo.  App.  286 :  878, 

923. 


XXXVIU 


TABLE    OF    CASES. 


Duncan  v.  Louisville,  13  Bush,  378: 

552. 
V.  Moore,  67  Miss.  136 :  377,  380. 
V.  Spear,  11  Wend.  54:  858. 
V.  Sylvester,  24  Me.  482 :  135. 
Dunham  v.  Dunham,  128  Mass.  34: 

584,  690. 
Dunker  v.  Chedic,  4  Nev.  823 :   371, 

377,  384,  550. 
Dunlap  v.  Edgertou,  30  Vt.  224 :   793. 

V.  Newman,  47  Ala.  429  :  646. 
Dunlap,  Ex  parte,  71  Ala.  93:  32. 
Dunn  V.    Buckley,  56  Wis.    192 :  30, 

377,  410. 
V,  Tozer,   10   Cal.    171 :  572,  582, 

685. 
Dunton  v.  Woodbury,  24  la.  74 :  563. 
Durant  v.  Davis,  10  Heisk.  522 :  343. 
Durham  v.  Bostick,  72  N.  C.  356  :  333, 

357,  500,  729. 
Durland  v.  Seller,  27  Neb.  33 :  602. 
Durner  v.  Kingsbury.  33  Mo.  App. 

519:  765. 
Duval  V.  Rollins,  71  N.  C.   221 :  514, 

532,  855,  918. 
Dwinell  v.  Edwards,  23  O.  St.   603 : 

121,  398. 
Dye  V.  Cook,  88  Tenn.  275:  101,  281. 
v.  Mann,  10  Mich.  291 :  352,  406, 

420,  472,  546,  618. 
Dykes  v.  O'Connor,   18  S.  W.  490: 

586,  692. 
Dyson  v.  Sheley,  11  Mich.  527 :  148, 

184,  196. 


E. 


Earl  V.  Camp,  16  Wend.  562,  571 :  858. 
Earle  v.  Bickford,  6  Allen,  549 :  948. 
V.  De  Witt,  6  Allen,  520 :  948. 
v.  Earle,  9  Tex.  630 :   67,  88,  96, 

459,  563,  581. 
V.  Hale,  31  Ark.  470 :  953. 
V.  Hardie,  80  N.  C.  177 :  678,  679, 
767. 
Early  v.   Wilson    (Neb.),   48  N.   W. 

148:  604. 
Eastman  v.  Caswell,  8  How.  Pr.  75 : 
805,  811. 


Eaton  V.  Robbins,  29  Minn.  327 :  262, 
457. 
V.  Ryan,  5  Neb.  47  :  296,  742. 
Eaton's  Appeal,  83  Pa.  St.  152:  329. 
Eaves  v.  Estes,  10  Kas.  314  :  364,  787. 
Eberhart's   Appeal,    39  Pa.   St.  512: 

782. 
Eberling  v.  Verein,  72  Tex.  339 :  388. 
Ebert  v.  Gerding,  110  111.  216:  404. 
Eby  V.  Foster,  61  Cal.  287 :  274. 
Eckert  v.  McKee,  9  Bush,  355:  841. 
Eckhardt  v.  Schlecht,  29  Tex.  130: 

362. 
Eckman  v.  Scott  (Neb.),   52  N.   W. 

822:  562. 
Eddins  v.  Buck,  23  Ark.  507:  397. 
Eddy  V.  O'Hara,  132  Mass.  56 :  824. 
Edgcomb  v.  His  Creditors,  19   Nev. 

149:  805,  810,  811. 
Edgell  v.  Hagens,  53  la.  223 :  423. 

V.  Lowell,  4  Vt.  405 :  434. 
Edmondson  v.  Blessing,  42  Tex.  596 : 
148,  373. 
V.  Hyde,  2  Saw.  218:  418. 
V.  Meacham,  50  Miss.  34 :  130, 516, 
535. 
Edson  V.  Trask,  22  Vt.  18 :  435,  443. 
Edwards  v,   Edwards,  14  S.   C.    11: 
356,  912. 
V.  Fry,  9  Kas.  424 :   181,  194,  200, 

201,  294,  571. 
V.  Kearzy,  96  U.  S.  595:  11,  41, 

278,  678. 
V.  Mahon,  5  Phila.  531 :  322. 
V.  McGee,  27  Miss.  92 :  789. 
V.  Shoeneman,  104  111.  278 :  376. 
V.  Thompson,  85  Tenn.  721 :  629. 
Edwards'  Lessee  v.  Darby,  12  Wheat. 

206 :  210,  263. 
Effinger  v.  Gates,  61  Tex.  590 :  185. 
Egbert  v.  Egbert  (la.),  52  N.  W.  478 : 

543,  620. 
Eggers  V.  Redwood,  50  la  289 :  414, 

727. 
Eggleston  v.  Eggleston,  72  IlL   24: 

605,  626. 
Ehle  V.  Deitz,  32  111.  App.  547 :  848. 
Eisenstadt  v.  Cramer,  55  la  753 :  47, 
422,  431. 


TABLE    OF    CASES. 


XXXIX 


Elder  v.  Williams.  16  Nev.  416 :  805, 

807,  853,  917,  918. 
Eldridge  v.  Pierce,  90  111.  474 :   213, 

265,  266,  409.  495,  579. 
Eli  V.  Gridley,  27  la.  376 :  430. 
Elias  V.  Verdugo,  27  Cal.  418:   136, 

140.  905. 
Ellerman  v.  Wurz  (Tex.),   14  S.  W. 

333 :  362,  502,  527. 
Elliot  V.  Elliot,  137  Mass.  116:  616. 
Elliott  V.  Mackorell,  19  S.  C.  239 :  268, 

657,  758. 
V.  Sleeper.  2  N.  H.  525 :  555. 
V.  Whitmore,  5  Mich.  533,  536: 

852. 
Ellis  V.  Baruett,  65  Ga.  350:  878. 

V.  Davis  (Ky.),  14  S.  W.  74:   83, 

87,  592. 
V.  Welch,  6  Mass.  251 :  115. 
V.  White,  47  Cal.  73 :  80. 
Ellison  V.  Halleck,  6  Cal.  392 :  627. 
Ellsworth  V.  Savre,  67  la.  449 :  866. 
Ellsworth,  etc.  R.  Co.  v.  Gates,  41  Kas. 

574:  945. 
Elmore  v.  Elmore,  10  Cal.  226 :  211. 
Elsberry  v.  Boykin,  65  Ala  340 :  385, 

425. 
Elston  V.  Robinson,  23  la.  208:  179, 

192,  202,  282,  284,  304,  437. 
Eltsroth  V.  Webster,  15  Ind.  21 :  773. 
Elwell  V.  Hitchcock,  41  Kas.  130 :  374 
Ely  V.  Eastwood,  26  111.  108 :  15,  41, 

294,  373,  421. 
Emerson  v.   Sansome,   41   CaL    552: 

140,  932,  933. 
V.  Smith,  52  Pa,  St.  90 :  536,  919. 
Emmett  v.  Emmett,  14  Lea,  369 :  582. 
Empey  v.  Plugert,  64  Wis.  603 :  927, 

941. 
Emporia  Ass'n  v.  Watson  (Kas.),  25 

Pac.  586 :  194,  436. 
Emslie  v.  Young,  24  Kas.  732 :  144. 
Engel  V.   Scheuerman,   40  Ga   206 : 

889,  890. 
Engelking  v.  Von  Wamel,   26  Tex. 

469:  26. 
England  v.  Clark,  4  Scam.  486 :  932. 
Englebrecht  v.   Shade.  47   Cal.   628 : 

115,  148,  185,  211,  232. 


Englehardt  v.  Yung's  Heirs,  76  Ala 

534:  195. 
English  V.  Register,  7  Ga  391 :  111. 
Enochs  V.  Wilson,  11  Lea,  228:  548. 
Enzor  v.  Hurt,  76  Ala  595  :  823,  829. 
Epps  V.  Epps,  17  111.  App.  196 :  624. 
Equitable  Ins.  Co.  v.  Gleason,  62  la 

277:  716. 
Erb  V.  Cole,  31  Ark.  557 :  520,  865, 

921. 
Ericsson  v.  Brown,  38  Barb.  390 :  824. 
Eslava  v.  Lepretre,  21  Ala.  504 :  696. 
Estate  of  Ackerman,  80  Cal.  209 :  599. 
Burdick,  76  Cal.  639 :  598. 
Burns,  54  Cal.  223  :  677. 
Burton,  63  Cal.  36 :  600. 
Busse,  35  Cal.  310 :  31,  272,  492, 

606. 
Crogan.  92  Cal.  370 :  598,  601. 
Crowey,  71  Cal.  300 :  177. 
Delauey,  37  Cal.   176:   185,  211, 

232,  601,  626,  671. 
Gilmore,  81  Cal.  240 :  600. 
Hardwick,  59  Cal.  292 :  600. 
Headen,  52  Cal.   295:    599,^01, 

708. 
James,  23  Cal.  417 :  459,  603,  657. 
Moore,  57  Cal.  437 :  607,  632. 
Orr,  29  Cal.  102 :  31,  627. 
Phelan,  16  Wis.  76 :  41. 
Reed,  23  Cal.  410 :  164,  170. 
Romeo,  75  Cal.  379 :  644. 
Taylor,  9  Pa  Co.  Ct.  293 :  916. 
Tompkins,  12  Cal.  114 :  459,  603. 

712. 
Walkerly,  81  Cal.  579 :  600. 
Walley,  11  Nev.  260:  77,  170, 174, 

238,  641. 
Wixom,  35  Cal.  320 :  606. 
Etcheborne  v.  Auzerais,  45  Cal.  121 : 

632. 
Etna  Fire  Ins.  Co.  v.  Tyler,  16  Wend. 

386:  609. 
Etna  Life  Ins.  Co.  v.  Franks,  53  la 

618:  423. 
Eubank  v.  Landram,   59  Tex.    247: 

592,  600. 
Euper  V.  Alkire,  37   Ark.  283:   563, 
865. 


il 


TABLE    OF    CASES. 


Eustache  v.  Rodaquest,  11  Bush,  42: 

592.  620. 
Evans  v.  Bryan,  95  N.  C.  174 :  905. 
V.Evans,   13  Bush,   589:    6,  269, 

490. 
V.  Grand  Rapids  R  Co.,  68  Mich. 

602 :  2,  220.  386.  701. 
V.  Harvester  Works,  63  la.  204 : 

836. 
V.  Montgomery,   4   Watts    &   S. 

(Pa.)  218:  677. 
V.  W^oinack,  48  Tex.  232:  185. 
Eve  V.  Cross,  76  Ga.  693 :  649. 
Eveleth  v.  Crouch,  15  Mass.  307 :  392. 
Everett  v.  Herrin,  46  Me.  357  :  806. 
Ex  parte  Barnes,  84  Ala.  540 :  673, 
810,  806,  914. 
Brien,  3  Tenn.  Ch.  33 :  7,  80. 
Car  raw  ay,  28  S.  C.  233 :  136,  403. 
Ellis,  20  S.  C.  344 :  157,  670. 
Hewett,  5  S.  C.  409 :  379. 
Hopkins,  104  Ind.  157:  907. 
Kurz.  24  S.  C.  468:  403. 
Lewie,  17  S.  C.  153 :  649,  652. 
Macay,  84  N.  C.  63  :  330. 
Pearson,  70  Ala.  521 :  790. 
Ray,  20  S.  C.  240 :  268,  657,  705. 
Reavis,  50  Ala.  210 :  789. 
Redd,  73  Ala.  548 :  848. 
Strobel.  2  S.  C.  311 :  2G8,  644. 
Young,  29  S.  C.  298 :  279,  280. 
Eylar  v.  Eylar,  60  Tex.  315 :  340,  394. 
Eyster  v.  Hatheway  50  111.  521 :  337, 
339,  345,  346,  349. 

F. 

Fagan  v.  McWhorter,  71  Tex.   567: 

597. 
Fairbairn    v,    Middlemiss,    47    Mich. 

372:  119. 
Fairbank  v.  Cudworth,  33  Wis.  358: 

403. 
Faircloth  v.  St.  Johns,  44  Ga.  603: 

76. 
Faivre  v.  Daley,  93  Cal.  664 :  579,  741. 
Falkner  v.  Folsoni,  6  Cal.  412 :  627. 
Fallon  V.  BiUler,  21  Cal.  30 :  627. 
Falls  V.  Crawford,  76  Ga.  35 :  703. 


Fanning  v.  Nat.  Bank,  76  III.  53:  825, 

835,  880. 
Farlan  v.  Sook,  26  Kas.  397 :  181. 
Farley  v.  Hopkins,  79  Cal.   203 :  64, 

753. 
V.  Riordon,  72  Ala.  128 :  665,  674, 

703. 
V.  Whitehead,  63  Ala.  295 :  210, 

223.  416. 
Farmer  v.  Simpson,  6  Tex.  310 :  355. 
V.  Taylor,  56  Ga.  559 :  550. 
V.  Turner,  64  la.  690 :  841. 
V.  Word,  72  Ga.  16 :  357. 
Farmers'   Bank   v.   Franklin,   1   La. 

Ann.  393 :  144. 
Farnan  v.  Borders,  119  111.  228:  586. 
Earner  v.  Turner,  1  la.  63:  803,  811. 
Farnsworth  v.  Wood,  91  N.  Y.  308 : 

836. 
Farr  v.  Reilly,  58  la.  399 :  156. 
V.  Putnam,  60  Vt.  54 :  633. 
Farra    v.    Quigley,  57  Mo.  284:  170, 

176,  285,  291. 
Farrell  v.  Higley.  Hill  &  D.  87:  817. 
Farris  v.  State,  33  Ark.  70 :  864. 
Farrow  v.  Farrow,  13  Lea,  120 :  268, 

650. 
Farwell  Brick  Co.  v.  McKenna,  86 

Mich.  283 :  67,  582. 
Faurote  v.  Carr,  108  Ind.  126 :  840. 
Faut  v.  Talbot,  15  Ky.  712:  192. 
Fauverv.  Fleenor,  13  Lea,  624:  410. 
Favers  v.  Glass,  22  Ala.  624 :  804,  810. 
Fay  V.  Smith,  25  Vt.  610 :  923. 
Fayette  County  v.  Hancock  (la.),  49 

N.  W.  1040 :  844. 
Fearn  v.  Word,  65  Ala.  33  :  19. 
Fears  v.  Thompson,  82  Ala.  296:  556, 

879. 
Fegavary  v.  Broesch,  52  la.  88 :  873. 
Feides  v.  Duncan,  30  111.  App.  469, 

474 :  29,  112,  562. 
Felker  v.  Crane,  70  Ga.  484 :  550. 
Felner  v.  Bumgarner  (Ark.),  17  S.  W. 

709 :  699,  756. 
Fellows  V.  Dow,  58  N.  H.  21:   117. 

119. 
V.  Lewis,  65  Ala.  343,  356-7 :  82, 

471,  516,  517,  665. 


TABLE    OF    CASES. 


xli 


Fellows  V.  Smitl).  131  Mass.  363:  900. 
Fenwick  v.  Wheatley.  23  Mo.   App. 

641 :  669,  670. 
Ferguson  v.  Hanauer  (Ark.),  19  S.  W. 
749:  698. 
V.   Kiimler,  27   Miun.    156:   408, 

529.  535.  676. 
V.  Mason,  60  Wis.  377:  383,  474, 

475. 
V.  Reed.  45  Tex.  584 :  138. 
Ferrer  v.  lus.  Co.,  47  Cal.  429  :  272. 
Fessler  v.  Haas,  19  Kas.  216 :  560. 
Fick  V.  Mulholland,  48  Wis.  413:  815. 
Field  V.  Holland,  6  Cr.  8 :  351. 
Fielder  v.   Jessup.  24   Mo.  App.  91 : 

889. 
Fievel  v.  Zuber,  67  Tex.  275:  340. 
Fight  V.  Holt,  80  111.  84 :  605,  626,  657. 
Finch  V.  Beal,  68  Ga,  594 :  442. 

V.  Houghton,  19  Wis.  163 :  720. 
Fingurhuth  v.  Lachmau,  37  Mo.  App. 

489:  906. 
Fink  V.  O'Nei],  106  U.  S.  272 :  327. 
Finlen  v.  Howard,  126  111.  259 :  764, 

825. 
Finley  v.    Dietrick,  12  la.  516 :  155, 
225  226  227. 
V.  McConnell,   60    111.   259 :    266, 

582. 
V.  Saunders,  98  N.  C.  462 :  560. 
V.  Sly,  44  Ind.  266 :  775,  865. 
Finlon  v.  Clark,  118  111.  32:  555. 
Finnegan  v.  Prindeville,  83  Mo.  517 : 

201,  288,  291. 
Finnin  v.  Malloy,  33  N.  Y.  Superior, 

382 :  810,  847,  859. 
Firmstone   v.  Mack,  49  Pa.  St.  387 : 

542. 
First  Nat.  Bank  v.  Ashmead,  23  Fla. 
379:  421. 
V.  Baker,  57  la.  197 :  438. 
V.  Briggs,  22  111.  App.  228 :  380, 

551. 
V.  Bruce  (Cal.),  29  P.  586 :  164, 191. 
V.  Bryan,  62  la.  43 :  423. 
V.  De  la  Guerra,  61  Cal.  109 :  12, 

140,  211. 
T.  Hackett,    61   Wis.    335,    348 : 

9oa 


First   Nat.    Bank   v.    Holliiigsvvorth, 
78  la.  575:  6,11,179,219,282, 
351. 
V.  Jacobs,  50  Mich.  340 :  173,  649, 

685. 
V.  Jaggers,  31  Md.  51  :  900. 
V.  Massingill,  80  Ga,  333 :  85,  147, 

148. 
V.  Thompson,  72  la.  417 :  438. 
V.  Warner,  22  Kas.  537 :  187. 
V.  Weckler,  52  Md.  30,  42 :  879. 
Fish  V.  Hunt,  81  Ky.  584 :  366. 
v.  Sawyer,  11  Ct.  545:  474. 
V.  Street,  27  Kas.  270 :  877. 
Fishback  v.  Lane,  36  111.  437  :  582. 
Fisher  v.  Cornell,  70  111.  316 :  180,  572. 
V.  Hall,  41  N.  Y.  416 :  429. 
V.  Meister,  34  Mich.  447 :  44,  352, 
419,  473. 
Fitzell  V.  Leaky,  72  Cal.  477 :  511. 
Fitzgerald  v.  Fernandez,  71  Cal.  504 : 
140. 
V.  Rees,  67  Miss.  743,  747 :  25,  223, 
227. 
Fitzpate-ick  v.  Gebhart,  7  Kas.  35 :  24 
Flanagan  v.  Cushman,  48  Tex.  344 : 
333,  340,  346. 
V.  Meyer.  41  Ala.  135 :  436. 
Flanders  v.  Wells,   61   Ga.  195 :  544, 

548,  873,  886. 
Flatt  V.  Stadler.  16  Lea,  371 :  137, 267, 

368,  560. 
Fleetwood  v.  Lord,  87  Ga.  592 :  384, 

649. 
Flege  V.  Garvey,  47  Cal.  375 :  384, 485, 

621. 
Fleming  v.  Henderson,  133  Ind.  334 : 
849. 
V.  Graham.  110  N.  C.  374:  702. 
Flemister  v.  Phillips,  65  Ga.  676 :  548. 
Fletcher  v.  State  Bank,  87  N.  H.  391 : 

361. 
Flint,  etc.  Steamboat  Co.  v.  Foster,  5 

Ga.  194 :  38. 
Flora  V.  Robbins,  93  N.  C.  38 :  667. 
Floyd  V.  Mosier,  1  la.  513 :  84,  94, 590, 

633. 
Fogg  V.  Fogg,  40  N.  H.  383:  183,  315, 
668,  715. 


xlii 


TABLE   OF   CASES. 


Fogg  V.  Littlefield,  68  Me.  52 :  885. 
Foley  V.  Cooper,  43  la.  376 :  295,  410, 

727. 
Folschow  V.  Werner,  51  Wis.  87 :  841. 
Folsoni  V.  Carli,  5  Minu.  337:    296, 

566. 
Foot  V.  Burch,  6  Barb.  60 :  34. 
Foote  V.  People,  12  111.  App.  94:  858. 
Ford  V.  Cobb,  20  N.  Y.  344 :  364,  787. 
V.  Dyer,  26  Miss.  243 :  864. 
V.  Ford,  70  Wis.  52 :  2. 
V.  Johnson,  34  Barb.  364 :  801. 
V.  Williams,  24  N.  Y.  359 :  863. 
Fordyce  v.  Hicks,  80  la.  272 :  140. 
Fore  V.  lore's  Est.  (N.  D.),  50   N.  W. 

712 :  621,  654,  789. 
Foreman  v.  Meroney,  62  Tex.  723 :  89, 

207,  573,  624. 
Forgy  V.  Merryman,  14  Neb.  513 :  951. 
Forsyth  v.  Bower,  54  Cal.  639 :  808. 

V.  Freer,  62  Ala.  443 :  428. 
Fort  V.  Powell,  59  Tex.  321 :  190. 
Fortman  v.  Goepper,  14  O.  St  558 : 

364,  787. 
Fortune  v.  Watkins,  94  N.  C.  304 :  79. 
Foss  V.  Foss,  58  N.  H.  283 :  189. 

V.  Strachn,  42  N.  H.  40:  112,  261, 
384,  392,  592. 
Fossett  V.  McMahan,  74  Tex.  546 :  627. 
Foster  v.  Byrne,  76  la.  295  :  838. 
V.  Dudley,  30  N.  H.  463:  914. 
V.  Elliott,  33  la.  216 :  621. 
V.  Foster,  56  Vt.  540 :  519,  711. 
V.  Leland,  141  Mass.  187 :  67,  260, 

585,  623. 
V.  McGregor,  11  Vt.  595:  516. 
V.  Milliner,  50  Barb.  393 :  747. 
Fountain  v.  Hendley,  82  Ga.  616 :  76, 

77,  693. 
Fournier  v.  Chisholm,  45  Mich.  417 : 

386. 
Fowler  v.  Gilmore,  30  Tex.  433 :  788, 
800. 
V.  Hunt,  48  Wis.  345 :  815. 
V.  Wood,  31   S.  C.  398:    11,  279, 
280. 
Fox  V.  Brooks,   88   N.  C.   234:   333, 

335. 
Fraley  v.  Kelly,  88  N.  C.  227 :  676. 


Franklin  v.  Coffee.  18  Tex.  413:  185, 
191,  196,  399. 
V.  Ins.  Co.,  43  Mo.  495 :  360. 
Franks  V.  Lucas,  14  Bush,  395:  117. 
Frantz  v.  Dobson.  64  Miss.  631 :    802. 
Frazier  v.  Barnum,  19  N.  J.  Eq.  316: 
795. 
V.  Syas,   10  Neb.    115:    774,  810, 
918. 
Freehling  v.  Bresnahan,  61  Mich.  540 : 

774,  901. 
Freeman  v.  Caldwell,    10   Watts,  9: 
932. 
V.  Carpenter,  10  Vt.  433 :  794,  809, 

810. 
V.  Smith,  30  Pa.  St.  264 :  919. 
V.  Stewart,  5  Biss.   19 :    180,  665. 
Frencli  v.  Fuller,  23  Pick.  104:  259. 
V.  Fyan,  93  U.  S.  169 :  941. 
V.  Stratton,  79  Mo.  560 :  547,  60a 
Freund  v.  McCall,  73  Mo.  343 :    464, 

547,  653. 
Frick  Co.  v.  Ketels,  42  Kas.  527 :  410. 
Frieberg  v.  Walzerin  (Tex.),  20  So. 

60 :  741. 
Friedlander  v.  Mahoney,  31  la.  315 : 

435,  443,  785. 
Friedman  v.  Sullivan,  48  Ark.  213 : 

879. 
Friend  v.  Garcelon,  77  Me.  26 :  840. 
Frink  v.  Alsip,  49  Cal.  102 :  121. 
Frisbie  v.  Whitney,  9  Wall.  193 :  135, 

931,  933,  948. 
Frits  V.  Frits,  32  Ark.  327 :    239,  400, 

532. 
Fromans  v.   Mahlman  (Cal),   27  P. 

1095:  165. 
Frost  V.  Naylor,  68  N.    C.  325 :  828, 
835. 
V.  Rainbow   (la.),  52  N.  W.  198 : 

755. 
V.  Shaw,  3  O.  St.  270 :  542,  730, 
781,  869,  873,  874. 
Fry  V.  Canfield,  4  Vt.  9 :  859. 
Fuller  V.  Hunt,  48  la.  163 :  423. 
Fullerton  v.  Doyle,  18  Tex.  14:  688. 
Funk  V.  Israel,  5  la.  450  :  860. 
Furguson  v.  Kumber,  25  Minn.  183: 
377. 


TABLE    OF   CASES. 


xliii 


Furman  v.  Dewell,  35  la.   170:  285, 

438. 
Furrow  v.  Athey,  21  Neb.  G71 :  397. 
Fusilier  v.  Buckner,  28  La.  Ann,  594 : 

64. 
Fyfee  v.  Beers,  18  la.  11 :  118,  562. 

G. 

Gafford  v.  Stearns,  51  Ala.  434 :  579. 
Gage  V.  Neblefct,  57  Tex.  374 :  301. 
V.  Wheeler,  129  111.  197 :  397. 
Gagliardo  v.  Dumont,  54  Cal.  498 : 

121,  384,  599,  708. 
Gaine  v.  Casey,  10  Bush,  92 :  550. 
Gaines  v.  Exchange  Bank,  64  Tex. 
18 :  157,  533. 
V.  Molen,  41  Ark.  232 :  949. 
V.  Thompson,  7  Wall.  347 :    941. 
Gainus  v.  Cannon,  42  Ark.  503 :  188, 

650. 
Galliger  v.  Payne,  34  La.  Ann.  1057 : 
7,  39,  58,  59,  94,  96,  178,  580. 
Galligher  v.  Smiley,  28  Neb.  194 :  177. 
Galveston  v.  Heard,  54  Tex.  420 :  329. 
Gambette  v.  Brock,  41  Cal.  83 :  126, 

165,  170,  177,  580. 
Gamble  v.  Central  R.  Co.,  80  Ga.  595 : 
869. 
V.  Reynolds,  42  Ala.  236 :  862. 
V.  Rhyne,  80  N.  C.  183 :  678,  767. 
Gangvvere's  Appeal,  36  Pa.  St.  466 : 

873. 
Ganong  V.  Green,  71  Mich.  1 :  861,  874. 
Ganson  v.  Baldwin  (Mich.),  53  N.  W. 

171. 
Gant  V.  Henly,  64  Mo.  162:  457. 
Gapen  v.  Stephenson,  18  Kas.  140 :  201. 
Garaty  v.  Du  Bose,  5  S.  C.  498 :  40, 

58,  59,  80,  118. 
Gardner  v.  Baker,  25  la.  343 :  558. 
V.  Douglass,  64  Tex.  78:  196,  399. 
V.  Eberhart.  82  111.  316 :  159,  180. 
V.  King,  37  Kas.  671 :  871,  874. 
V.  Moore,  75  Ala.  394 :  421,  427. 
Garibaldi  v.  Jones,  48  Ark.  231 :  272, 

298,  493,  573,  633,  650. 
Garlick  v.  Strong,  3  Paige  (N.  Y.), 
452:  397. 


Garlock   v.  Baker,  46  la.   334:    395, 

427. 
Garner  v.  Bond,  61  Ala.  84:  471. 
V.  Leverett,  32  Ala.  410 :  357. 
Garret  v.  Farmer,  21  Mo.  160 :  780. 
Garrett  v.  Beaumont,  24  Miss.  337 : 
767. 
V.  Cheshire,  69  N.  C.  396 :  280. 
V.  Jones  (Ala.),  10  So.  702 :    152, 

574. 
V.  Wade,  46  Ark.  493:  871. 
V.  Weaver,  70  Tex.  463 :  181. 
Garrison  v.  Grant,  57  Tex.  602 :  147, 

148. 
Gasaway  v.  Woods,  9  Bush,  72 :  592. 
Gass  V.  Van  Wagner,  63  Mich.  610 : 

782. 
Gassoway  v.  White,  70  Tex.  475 :  252. 
Gast  V.  Board  of  Assessors,  43  La. 

Ann.  1105:  766. 
Gaster  v.  Hardie,  75  N.  C.  460 :  918. 
Gates  V.  Hester,  81  Ala.  359 :  427,  579. 
V.  Salmon,  35  Cal.  576:  32,  135. 
V.  Steele,  48  Ark.  539 :    66,  562, 
572,  581,  633. 
Gatewood  v.  Bryan,  7  Bush,  509  :  365. 
Gatton  V.  Tolley,  22  Kas.  678 :  650. 
Gay  V.  Halton,  75  Tex.  203 :  7,  80. 
V.  Hanks,  81  Ky.  552 :  592,  645. 
V.  McGuffin,  9  Tex.  501 :  185. 
V.  South  worth,    113    Mass.    333: 
882. 
Gaylord  v.  Imhoff,  26  O.  St.  317 :  143, 
904. 
v.  Loughbridgc.  50  Tex.  573:  362. 
Gazley  v.  Price,  16  Johns.  267 :  607. 
Gee  v.  Moore,  14  Cal.  472 :  485,  600, 

606. 
Geiges  v.  Greiner,  68  Mich.  153 :  148, 

226. 
Geney  v.  Maynard,  44  Mich.  579 :  148, 

184,  226. 
Gentry  v.  Purcell,  84  Ind.  83:  323, 

759,  760. 
George  v.  Bassett,  54  Vt.  217 :  309. 

V.  Fellows,  60  N.  H.  398  :  809,  879. 
Gerding  v.  Beall,  63  Ga.  561 :  20,  76, 

227,  229,  640. 
Gerdner  v.  Douglass,  64  Tex.  79 :  198. 


xliv 


TABLE    OF   CASES. 


German  Ins.  Co.  v.  Nichols,  41  Kas. 

133 :  374 
V.  York  (Kas.),  29  P.  586 :  441. 
Gerson  v.  Gayle,  34  La.  Ann.  337: 

170,  172. 
Geskell  v.  Case,  18  la.  147 :  788. 
Getchell  v.  Chase,  37  N.  H.  106 :  914. 
Getzler  v.  Saroni,  18  III.  511 :  516. 
Glieen  v.  Summey,  80  N.  C.  187 :  103, 

480,  679. 
Gibb  V.  Rose,  40  Md.  387 :  427. 
Gibbs  V.  Patten,  2  Lea,  180 :  395,  529, 

607. 
Giblin  v.   Jordan,   6  Cal.   417:   140, 

167. 
Gibson  v.  Chouteau,  13  Wall.  92 :  925, 

944 
V.  Gibson,  15  Mass.  106:  545. 
V.  Marquis,  29  Ala.  668 :  45. 
V.  Mundell,  29  O.  St.  523 :  433. 
Giddens  v.  Williamson,  65  Ala.  439 : 

19,  210,  667. 
Gideon  v.  Struve,  78  Ky.  134:  667. 
Gilbert  v.  Cowan,  3  Lea,  203 :  268. 
V.  Kennedy,  22  Mich.  5 :  621. 
V.  Neely,  35  Ark.  24 :  327. 
Gile  V.  Hallock,  33  Wis.  523 :  926. 
Gill  V.  Edwards,  87  N.  C.  77 :  10,  18, 

324,  325. 
V.  Latiraore,  9  Lea,  381 :  137. 
Gillan  v.  Dixon,  65  Pa.  St.  395 :  142. 
Gilleland  v.  Rhoads,  34  Pa.  St.  187 : 

536.  919. 
Gilliam  v.  McCormack,  85  Tenn.  609 : 

410. 
V.  Null,  58  Tex.  305 :  251,  595. 
Gillum  V.  Collier,  53  Tex,  592 :  346, 

354. 
Gilman  v.  Williams,  7  Wis.  336 :  903. 
Gilmer  v.  O'Neal,  32  La.  Ann.  980 : 

39,  170,  172. 
Gilmore  v.  Bright,  101  N.  C.  382 :  65, 

79,  493. 
Gilpelke  v.  Dubuque,  1  Wall.  175 :  52. 
Gilson  V.  Parkhurst,  53  Vt.  384:  743. 
Gilworth  v.  Cody,  21  Kas.  702 :  181, 

194,  2U0,  201,  294 
Gimble  v.   Goode,  13  La.  Ann.  352 : 

694 


Gimmy  v.  Doane,  22  CaL  638 :  70. 
Giovanni   v.  First  N.    Bank,  55  Ala. 

305:  905. 
Girzi  V.  Carey,  53  Mich.  447 :  352. 
Givens  v.  Dewey,  47  la.  414 :  7,  179, 

282,  576. 
V.  Hudson,  64  Tex.  471 :  83,  96, 

659. 
Glaze  V.  Watson,  55  Tex,  563 :  346. 
Gleason  v.  Spray,  81   Cal,  217 :  384, 

485,  559, 
Glendon  v,  Harrington,  33  Mo.  App. 

476:  782. 
Glover  v.  Glover,  18  Ala.  367 :  564 
V.  Hill,  57  Miss.  240 :  461,  618. 
V.  Stamps,  73  Ga.  209 :  649. 
Godfrey  v.  Thornton,  46  Wis,   677: 

478,  550, 
Goetter  v.  Pickett,  61  Ala.  387:  557. 
Goff  v.  Jones,  70  Tex.  572  :  388. 
Golden  v.  Conner,  89  Ala.    598:  557, 

884 
Goldman  v,  Clark,  1  Nev.  516 :  212, 

235,  730. 
Goltra  V.  Green,  98  111.  317 :  557, 
Good  V.  Coombs,  28  Tex.  35 :  135, 
V.  Fogg,  61  111.  449 :  764,  783, 
Goodall  V,  Boardman,  53  Vt,  92 :  146, 

743. 
Goodenough  v.  Fellows,  53  Vt,  108 : 

633. 
Goodloev.  Dean,  81  Ala.  479:  182. 
Goodrich  v.  Brown,  63"  la.  247 :  156, 

374,  380,  385,  438. 
Goodwin  v,  Colo,  Mort,  Co.,  110  U,  S, 

1 :  11,  169,  171, 
V.  McCabe,  75  Cal.  584 :  933. 
Goore  v,  McDaniel,  1  McC.  480 :  304 
Goozenv.  Phillips,  49  Mich.  7:  795, 

799. 
Gordon  v.   Lowtlier,  75   N.   C.   193: 

300. 
V.  McCurdy,  26  Mo.  304 :  780. 
v,  Mcllwain,  82  Ala  247 ;  696. 
V,  Shields,  7  Kas.  320 :  798. 
Gorham  v.  Daniels,  23  Vt,  600 :  621. 

V.  Summers,  25  Minn.  81 :  365. 
Goss  V.  Cahill,  42  Barb.  310:  45. 
Goudy  V.  Werhe,  117  Ind.  154:  906, 


TABLE    OF    CASES. 


xlv 


Gouhenant  v.  Cockrell,  20  Tex.  97 : 

558,  567,  568,  579. 
Gove  V,  Campbell,  63  N.  H.  401 :  519, 

641. 
Governeur  v.  Elmendorf,  5  John.  Ch. 

79:  948. 
Gowan  v.  Fountain  (Minn.),  52  N.  W. 

862:  741. 

Grace  v.  Kezar,  86  Ga.  697 :  738,  741. 

Gragg  V.  Gragg,  65  Mo.  343 :  457, 617. 

Graham   v.    Crockett,    18    Ind.    119: 

230,  850,  890. 

V.  Culver  (Wy.),  29  P.  270 :  316. 

V.  Hastings,   1   Land   Dec.    380 : 

940. 
V.  Stewart,  68  Cal.  374 :  31. 
Grand  Rapids,  etc.  Co.  v,  Weiden,  69 

Mich.  593 :  169. 
Grant  v.  Cosby,  51  Ga,  460 :  279. 

V.  Edwards,  86   N.   C.   513 :  103, 

678. 
V.  Oliver,  91  Cal.  158 :  953. 
V.  Parsons,  67  la.  31 :  716. 
Grantham  v.  Kennedy,  91  N.  C.  148 : 

52. 
Graves  v.  Baker,  68  Cal.  133 :  121, 165. 
V.  Campbell,  74    Tex.   576 :   561, 

562. 
V.  Cochran,  68  Mo.  76 :  705. 
V.  Hines,  108  N.  C.  262 :  646. 
v.  Hinkle,  120  Ind.  157 :  Sofi. 
Gray  v.  Baird,  4  Lea,  212 :  343,  668. 
V.  Crockett,  30  Kas.  138 :  227. 
V.  Gates,  37  Wis.  614 :  691. 
V.  Stockton,  8  Minn.  472 :  940. 
Greely  v.  Reading,  74  Mo.  309 :  913. 
V.  Scott,  2  Woods,  657 :  158,  188, 
241. 
Green  v.  Blanchar,  40  Cal.  194:  143. 
V.  Blunt,  59  la.  79 :  866. 
V.  Cheek,  5  Ind.  105 :  32. 
V.  Crow,  17  Tex.   180 :   603,  621, 

658. 
V.  Farrar,  53  la.  426 :    123,  156, 

172,  926. 
V.  Houston,  22  Kas.  35 :  953. 
V.  Lyndes,  13  Wis.  450:  688. 
V.  Marks,  25  111.  204 :  96,  486, 495, 
727,  853,  918. 


Green  v.  Pierce,  60  Wis.  373 :  184,  233, 
478,  575. 
v.  Raymond,  58  Tex.  80 :  803. 
V.  Spann,  25  S.  C.  273 :  330,  911. 
V.  United  States,  9  Wall  655 :  12, 

327. 
V.  Van  Buskirk,  7  Wall  139 :  747. 
V.  Watson,  75  Ga.  472 :  548. 
V.  Weller  82  Miss.  650 :  26. 
Greene  v.  Beckwith,  38  Mo.  384 :  561. 

V.  Green,  11  Pick.  410:  570. 
Greenhow  v.  James,  80  Va,  636 :  34. 
Greenleaf  v.  Sanborn,  44  N.  H.  16: 

875. 
Greenman  v.  Greenman,  107  IlL  404 : 

193. 
Greeno  v.  Barnard,  18  Kas.  518 :  368, 

738,  869. 
Greenough  v.  Turner,  77  Mass.  333 : 

44,  422,  545. 
Green  way  v.  Goss,  55  Ga.  588 :  333. 
Greenwood  v.  Maddox,  27  Ark.  655 : 

•     37,  59,  80,  94,  138,  361. 
Gregg  v.  Bostwick,  33  Cal.  220 :  158, 
170,    177,  184,  188,  211,   212, 
235,  274. 
Gregory  v.  Ellis,  86  N.  C.  579 :  646, 
647. 
v.  Evans,  19  Mo.  2G1 :  780. 
V.  Latchem,  53  Ind.  449 :  853. 
V.  Oats  (Ky.),  18  S.  W.  231 :  256, 
575. 
Greig  v.  Eastin,  30  La.   Ann.    1130: 

595. 
Grenada  Co.  v.  Brogden,  112  U.  S. 

261 :  34. 
Gresham  v.  Johnson,  70  Ga.  631 :  78. 
v.  Walker,  10  Ala.  370 :  777,  866. 
Griffie  v.  Maxey,  58  Tex.  214:  253, 

301,  647. 
Griffin  v.  Griffin,  42  Ga.  523 :  456. 
V.  Johnson,  37  Mich.  92 :  420,  427, 

587,  633. 
V.  Maxwell,  33  111.  App.  405 :  77a 
V.  McKenzie,  7  Ga.  163 :  767. 
V.  Nichols,  51  Mi(  b.  579 :  46,  169, 

197,  541. 
V.  Proctor,  14  Bush,  571 :  343, 366, 
433. 


xlvi 


TABLE    OF   CASES. 


Griffin  v.  Slioley,  55  la.  513:  563. 

V.  Suthcrliin.l,  14  Barb.   456:  81, 

562,  563,  771,  865. 
Griffith  V.  Bailey,  79   Mo.  472:   561, 

877. 
V.  Langsdale,  53  Ark.  73 :  888. 
Grimes  v.  Bryue,  2  Minn.  89 :  41,  280, 

814. 
V.  Portmau,  99  Mo.  229:  151,  373, 

379. 
Grinnell  v.  Railroad   Co.,  103  U.  S. 

739:  946. 
Griswold  v.  Huffaker  (Kas.),   28  P. 

696:  743. 
V.  Johnson,  22  Mo.  App.  466:  11, 

170,  171,  201,  288. 
V.  Johnson,  5  Ct.  363 :  135. 
Groesbeck  v,  Groesbeck,  78  Tex.  664 : 

581. 
Grogan  v.  San  Francisco,  18  Cal.  590 : 

768. 
V.  Thrift,  58  Cal.  378 :  486. 
Groover  v.  Brown,  69  Ga.  60 :  76, 640. 
Grosholz  V.  Newman,  21  Wall.  481 : 

189,  192. 
Grothaus  v.  De  Lopez,  57  Tex.  670: 

596,  634. 
Grower  v.  Fletcher,  116  U.  S.  380: 

949. 
Grubb  V.  Suit,  32  Gratt.  203 :  323. 
Grubbs  v.  Ellison,  23  Ark.  287 :  882. 
Gruhn   v.    Richardson,  128  111.  178: 

349,  401. 
Grupe  V.  Byers,  73  Cal.  271 :  70. 
Gruwell  v.  Seybolt,  82  Cal.  7 :  122,  600, 

677,  705. 
Guinn  v.  Spurgin,  1  Lea,  228 :  343. 
Guiod  V.  Guiod,  14  Cal.  506 :  385,  392, 

582,  685. 
Guise  V.  State,  41  Ark.  249 :  850. 
Gulley  V.  Cole,  102  N.  C.  333 :  44,  673, 

676,  677. 
Gun  V.  Wades,  65  Ga.  537 :  525. 
Gunn  V.  Barry,  15  Wall.  610:  11,  41, 

136,  278,  280,  287,  327,  766. 
V.  Gudehus,  15  B.  Mon.  447 :  81, 

83,  97,  771. 
V,  Miller,  43  Ga.  377 :  455. 
V.  Thornton,  49  Ga,  380 :  279,  294. 


Gunnison  v.  Twitchel,  38  N.  H.  62 : 

261,  384,  417,  702. 
Gunter  v.  Leckey,  30  Ala.  591 :  43. 
Guptil  V.  McFee,  9  Kas.  30 :  143,  800, 

814,  903. 
Guthman   v.  Guthman,  18  Neb.  98, 

106:  642. 
Gutterson  v.  Morse,  58  N.  H.  529: 

919. 
Guy  V.  Downs,  12  Neb.  532 :  572. 
Gwynne  v.  Estes,  14  Lea,  673 :  410, 

583. 
V.  Niswanger,  15  Ohio,  367 :  953. 


H. 


Haas  V.  Shaw,  91  Ind.   384:  764,  882. 
Habergham  v.  Vincent,  2  Yesey,  Jr. 

204:  424. 
Hackley  v.  Sprague,  10  Wend.  116: 

41. 
Hadden  v.  Collector,  5  Wall.  107 :  25, 

33. 
Hadley  v.  Bryars,  58  Ala.  139 :  305, 

309. 
Hafer  v.    Hafer,   36  Kas.   524:  61.3, 

656. 
Hagar  v.  Adams,  70  la.  746 :  888. 
Hageman   v.   Salisberry,   74   Pa,  St. 

280:  540. 
Hager  v.  Nixon,  69  N.  C.  108:  493, 

640,  653,  655,  657. 
Hair  v.  Hair,  10  Rich.  (S.  C.)  Eq.  163 : 

570. 
V.  Wood,  58  Tex.  77 :  597. 
Hairston  v.  Dobbs,  80  Ala.  589 :  697. 

V.  Hairston,  27  Miss.  704 :  570. 
Halt  V.  Houle,  9  Wis.  472 :  478. 
Halbe's  Estate,   9  Pa.    Co.   Ct.  512: 

877. 
Hale  V.  Heaslip,  16  la.  451 :  282,  284, 

304. 
V.  Richards,  80  la.  164 :  502. 
Hall  V.  Fields,  81  Tex.  553 :  458,  459, 

598. 
V.  Fulgham,  86  Tenn.  451 :  548. 
V.  Fullerton,  69  111.  448 :  387,  582. 
V.  Harris,   113  111.  410:  649,  916, 

917. 


TABLE    OF    CASES. 


xlvii 


Hall  V.  Hougli,  24  Ind.  373 :  863. 
V.  Jolinson,  64  N.  H.  481 :  708. 
V.  Loomis,  63  Mich.  709 :  353. 
V.  Mathews,  68  Ga.   490 :  78,  606. 
V.  Morgan,  79  Mo.  47 :  379. 
V.  Penney,  11  Wend.  44:  817. 
Hallman  v.  Hallman,  134  Pa.  St.  347 : 

693,  875. 
Halsey  v.  Fairbanks,  4   Mason,  306 : 

309. 
V.  Whitney,  4  Mason,  306 :  418. 
Halso  V.  Seawright,  65  Ala.  431 :  393, 

438,  471,  579. 
Ham  V.  Santa  Rosa   Bank,   63   Cal. 

138 :  163,  170,  313,  373. 
Hamblin  v.  Warnecke,  31  Tex.  91 : 

493,  637. 
Hambrick  v.  Jones,   64  Minn.   240: 

348. 
HamiU  V.  Henry,  69  la.  753 :  133. 
Hamilton  v.   Fleming,  36  Neb.  340 : 

774,  884,  918. 
V.  Fovvlkes,  16  Ark.  340 :  953,  953. 
V.  Rogers,  67  Mich.  135 :  893. 
Hammer  v.  Freese,   7   Harris  (Pa.), 

355  :  507,  547,  778,  784. 
Hammersmith  v.  Avery,  18  Nev.  335 : 

866. 
Hammond  v.  Wells,  45  Mich.  11  :  364. 
Hamrick  v.  People's  Bank,   54  Ga. 

503 :  337,  347. 
Hanby  v.  Heuritze,  85  Va.  177,  185 : 

6,  53,  490. 
Hanchett  v.  McQueen,  33  Mich.  33 : 

430,  473. 
Hancock  v.  Herrick  (Arizona),  29  P. 

13:  719. 
V.  Morgan,  17  Tex.  583 :  188,  323, 

250. 
Hand  v.  Winn.  53  Miss.  788 :  61,  582. 
Handy  v.  Dobbin,  13  Johns.  330  :  309. 
Hanes  v.  Tiflfany,  35  O.  St.  549 :  918. 
Hanks  v.  Crosby,  64  Tex.  483 :  653. 
Hanlon  v.  Com'rs,  53  Ind.  133 :  37. 
Hanlon  v.  Pollard,  17  Neb,  368 :  194, 

301. 
Hanna  v.  Morrow,  43  Ark.  107 :  297. 
Hannah  v.   Hannah  "(Mo.),  19  S.  W. 

87 :  656,  714. 


Hannahs  v.  Felt,  15  la.  141  :  294,  304. 
Hannon  v.  Engleman,  49  Wis.  278: 

351. 
V.  Sommer,  10  Fed.  601 :  385,  469, 

478. 
Hannum  v.  Mclnturf,   6  Bax.   225 : 

281. 
Hansford  v.  Holdam,  14  Bush,  310 : 

189,  563,  635. 
Hanson  v.  Edgar,  34  Wis.  653 :  478, 

531,  735. 
Harbison  v.  Vaughan,  48   Ark.  539 : 

96,  97. 
Hardeman  v.  Downer,  39  Ga.  435 :  41, 

280. 
Hardie    v.    Campbell,   63    Tex.  393: 

419. 
Hardin  v.  Howze,  18  S.  C.  74 :  368. 
V.  McCord,  73  Ga.  339 :  697. 
V.  Osborne,    43    Miss.    533:    143, 

653. 
V.  Wolf,  39  La.   Ann.  333 :    178, 

373,  541,  555. 
Harding  v.  Hendrix.  26  Kas.  583 :  833. 
Hardy  v.  De  Leon,  5  Tex.  311 :  185. 
V.  Lane,  6  Lea,  380:  317. 
V.  Sulzbacker,   63   Ala.   44 :   408, 

666. 
Hargadene  v.  Whitfield,  71  Tex.  483 : 

334,  251,  253,  257. 
Harkness  v.  Burton,  39  la.  101 :  354, 

386. 
Harlan  v.  Haines,  125  Pa.  St.  48 :  866. 
Harle  v.  Richards,  78  Tex.  80:  248. 
Harley  v.  Davis,  16  Minn.  487 :  346. 
Harlow  v.  Thomas,  15  Pick.  68 :  945. 
Harmon  v.  Bynum,  40  Tex.  324  :  645, 

650. 
v.  Wagener,  33  S.  C.  488 :  730. 
Harpending's    Ex'rs     v.    Wylie,    13 

Bush,  158 :  547.  548. 
Harper  v.  Forbes,  15   Cal.  203 :   385, 

564,  699. 
V.  Leal,  10  How.  Pr.  (N.  Y.)  383 : 

541. 
Harrier  v.  Fassett,  56   la.  364:  785, 

874. 
Hard  man  v.  Queen's  Ins.  Co.,  49  Wis. 

71 :  180,  510,  575. 


xlviii 


TABLE    OF    CASES. 


Harrington  v.  Smith,  14   Colo.  376 : 
782,  866. 
V.  Utterback,  57   Mo.  519:   289, 
754. 
Harris  v.  Colquit,  44  Ga.  663:   213, 
672. 
V.  Dale,  5  Bush,  61 :  365. 
V.  Glenn,  56  Ga.  94 :  21,  342,  544, 

729. 
V.  Haynes,  30  Mich.  140 :  798. 
V.  Seinsheimer,  67  Tex.  356 :  652. 
V.  Visscher,  57  Ga.  229 :  142. 
Harrison  v.  Andrews,  18   Kas.  535 : 
194. 
V.  Martin,  7  Mo.  287 :  798. 
V.  Mitchell,  13  La.  Ann.  260 :  144. 
V.  Obertheir,   40  Tex.   385 :    302, 
704. 
Harsh  v.  Griffen,  72  la.  608:  123,  422. 
Hart  V.  Evans,  80  Ga.  830 :  96,  98. 
V.  Hyde,  5  Vt.  328 :  794,  859. 
V.  Leete,  104  Mo.  315 :  141. 
V.  Lindsey,  17  N.  H.  235,  243 :  189. 
V.  Sanderson's  Adm'r,  18  Fla.  103, 
115:421. 
Hartford  Co.  v.  Miller,  41   Ct   112: 

135. 
Harthouse  v.  Rickers,   1   Duer,  606: 

810. 
Hartley  v.  Roflfe,  12  W.  Va.  401 :  103. 
Hartman    v.  Munch,   21   Minn.  107: 
118,  263. 
V.  Schultz,  101  IlL  437:  117,  120, 

216,  265,  495,  496. 
V.  Spiers,  94  N.  C.  150 :  667. 
V.  Thomas,  37  Tex.    90 :  60,    373, 
603. 
Hartsfield  v.  Harvoley,  71  Ala.  231 : 

654. 
Hartwell   v.   McDonald,  69   111.  293 : 
120,  265,   266,  267,   487,   495, 
730. 
Hartzler  v.  Tootle,  85  Mo.   23:  289, 

418,  515. 
Harvey  v.  Ford,  83  Mich.  506 :  906. 
V.  Harrison,  89  Tenn.  470 :  837. 
V.  McAdams,  32  Mich.  472:  861. 
V.  Tyler,  2  Wall.  347  :  40. 
V.  Wickham,  23  Mo.  112:  287. 


Hasenritter  v.   Hasenritter,   77    Mo. 

162:  464. 
Haskill  V.  Andros,  4  Vt  609 :   775, 859. 
Haskinsv.  Bennett,  41  Vt  698:  847. 
Haslam  v.  Campbell,  60  Ga,  650 :  48a 
Hastie  v.  Kelley,  57  Vt  293 :  187,  215, 

880. 
Hastings  v.   Dickinson,  7  Mass.  153 : 

545. 
V.  Myers.   21   Mo.   519 :  464,  788, 

857. 
V.  Stevens,  29  N.  H.  564 :  616. 
V.  Whitney,  132  U.  S.  357 :  860, 

938,  940,  942. 
Haswell  v.   Parsons,  15  Cal.  266 :  781, 

850,  890,  892. 
Hatch's  Estate,  62  Vt  300:  617. 
Hatcher  v.  Crews,  83    Va.  371:    54, 

531. 
V.  Crews,  78  Va.  460 :  55. 
Hatchings  v.  Low,  15  Wall.  77 :  946. 
Hatorff  v.  Wellford,  27  Gratt   356 : 

54,  640. 
Hawkes  v,  Hawkes,  46  Ga.  204 :  338, 

346. 
Hawkins  v.  Pearce,  11  Humph.  44: 

62,  775. 
Hawks  v.  Hawks,  64  Ga.  239:  227, 

338. 
Haworth  v.   Franklin,    74  Mo.  106: 

910,  912,  913. 
V.  Travis,  67  111.  302 :  266,  495. 
Hawthorne    v.    Smith,   3  Nev.    164: 

170,  174,  294,  306,  744. 
Hay  v.  Baugh,  77  111.  502 :  146. 
Hay,  Matter  of,  1  Copp,  363-4 :  927, 

928. 
Hayden  v.  Robinson,  83  Ky.  615 :  413, 

545,  551. 
V.  Slaugiiter,  43  La.  Ann.  385 :  9, 

298. 
Haynes  v.  Hussey,  72  Me.  448 :  823. 
V.  Meek,  14  la.  320 :  532,  718,  719. 
V.  Young,  36  Me.  557 :  945. 
Hays  V.  Hays.  66  Tex.  606 :  398,  701. 
Hay  ward  v.  Clark,  50  Vt  617:  841. 

V.  Ormsbee^  11  Wis.  3:  950. 
Healy  v.  Connor,  40  Ark.  352 :  868, 


TABLE  OF  OASES. 


xlix 


Heard  v.  Downer,  47  Ga,  631 :  96, 488, 

657. 
Hearn  v.  Kennedy,  85  Cal.  55 :  380. 
Heath  v.  Keyes,  35  Wis.  668 :  853. 
Heathman  v.  Holmes  (Cal.),  29  P.  404 : 

188. 
Heaton  v.  Sawyer,  60  Vt.  495 :  73,  74, 

97. 
Hebert  v.  Mayer,  42  La.  Ann.  839: 

298. 
Heckle  v.  Grewe,  125  111.  58 ;  26  111. 

A  pp.  339 :  907. 
Hector  v.  Knox,  63  Tex.  613  :  47, 390. 
Heidenheimer    v.    Blumenkron,    56 

Tex.  308 :  794. 
V.  Stuart,  65  Tex.  321 :  394,  398. 
Helfenstein   v.  Cave,  3   la.  287 :  295, 

674,  701,  730. 
Helm  V.  Helm,  30  Gratt  404:  54,  262, 

423,  426,  628,  640,  689. 
Henienway  v.  Wood,  53  la,  21 :  718, 

746. 
Hemmmgway   v.  Scales,  42  Miss.  1 : 

143. 
Hempstead  v.  Johnson,  18  Ark.  124 : 

520. 
Henderson  v.  Ford,  46  Tex.  628  :  252, 

584. 
V,  Hoy,  26  La.  Ann.  156 :  145. 
V.  Rainbow,  76  la.  320 :  154. 
V.  State,  96  lud.  437 :  916. 
V.  Tei  ry,  62  Tex.  284 :  432. 
V.  Tucker,  70  Ala.  381 :  555,  790. 
Hendon  v.  White,  52  Ala  597 :  579. 
Hendrix  v.  Hendrix,  46  Tex.  8 :  640, 
Henly  v.  Lanier,  75  N.  C.  172 :  676. 

V.  Seaborn,  25  S.  C.  481,  484  :  451. 
Henley  v.  Stemmons,  4  B.  Hon.  132 : 

552. 
Henry  v.  Anderson,  77  Ind.  361 :  905. 

906. 
V.  Gregory,  29  Mich.  68 :  46,  684. 
Hensey  v.  Hensey  (Ky.),  17  S.  W.  333  : 

172,  283,  286. 
Henson  v.  Moore,  104  111.  403 :  19,  449, 

468,  562. 
Hentsch  v.  Porter,  10  Cal.  559 ;  627. 
Hepburn  v.  Griswold,  8   Wall.  603: 

279. 


Herbert  v.  Mayer,  42  La,  Ann.  839 : 

9,  299. 
Herdman  v.  Cooper,  29  111.  App.  589 : 

143. 
Hereth  v.  Yandes,  34  Ind.  102 :  747. 
Herkimer  v.  Rice,  27  N.  Y.  163 :  609. 
Herrick  v.  Graves,  16  Wis.  157  :  147, 

572, 
V.  Moore,  19  Me,  313 :  945, 
Herrold  v.  Reen,  58  Cal,  443 :  262,  599, 

600.  601,  602,  708. 
Herron  v.  Knapp  Co.,  72  Wis.  553 : ' 

383,  478. 
Herschfeldt  v.  George,  6  Mich.  468 : 

173,  516,  519,  526,  729. 
Hersey  v.  Bennett,  28  Minn.  86 :  351. 
Hersliey  v.  Dennis,  53  Cal.  77 :  384. 
Hershy  v.  Latham,  46  Ark.  542 :  5ia 
Hess  V.  Bolinger,  48  Cal.  349 :  942. 
Hetrick  v.  Campbell,  14  Pa.  St.  263 : 

918. 
Hettrick  v.  Hettrick,  55  Pa.  St.  292 : 

789. 
Hewes  v.  Parkman,  20  Pick.  90 :  305, 

507,  547. 
Hewett  V.  Allen,  54  Wis.  583 :  441. 
Hewitt  V.  Rankin,  41  la,  35 :  117,  13& 
V.  Templeton,  48  111,  367 :  266, 267, 

387,  401,  486,  582, 
Hiatt  V.  Bullene,  20  Kas.  557 :  7,  181. 
Hibbern  v.  Soyer,  33  Wis.  319 :  514. 
Hickey  v.  Behrens,  75  Tex,  488 :  749. 
Hickman  v.  Cruise,  72  la.  528:  798. 
Hickox  v.  Fay,  36  Barb.  9 :  914, 
Hicks  V,  Lovell,  64  Cal,  14 :  107. 

V.  Morris,  57  Tex.  658 :  340,  346, 

527. 
V,  Pepper,    1   Bax,    43 :  567,  587, 

621, 
Hick's  Tea  Co.  v.  Mack,  19  Neb.  339 : 

396. 

Higgins  V.  Higgins,  46  Cal.  359 :  606. 

Hightower  v.  Beall,  66  Ga.  103 :  553. 

V.  Cravens,  70  Ga.  475 :  551 

V.  Slaton,  54  Ga.  108 :  835. 

Higley  v.  Millard,  45  la.  586 :  384,  377, 

433,  675. 
Hildebrand  v.   Taylor,   6   Lea,   659 

548. 


1 


TA^IiLE    OF    CASES. 


Hill,  Matter  of,  1  Copp,  363:  928. 
Hill  V.  Bacon,  43  111.  477  :  149,  159,  701. 
V.  Franklin,  54  Miss.  632:  58,  59, 

96,  97. 
V.  Hill,  48  Pa.  St.  198 :  41,  280. 
V.  Johnston,  29  Pa.  St.  362 :  561, 

670. 
V.  Kessler,  63  N.  C.  437 :  41,  280. 
V.  Loomis,  6  N.  H.  263 :  775. 
V.  Miller,  36  Mo.  182 :  936. 
V.  Myers,  46  O.  St.  183 :  530. 
V.  Oxendine,  79  N.  C.  331 :  158. 
Hilleary   v.   Thompson,    11   W.    Va. 

113:  103. 
Hillyer  v.  Remore,  42  Minn.  254 :  814. 
Hines  v.  Duncan,  80  Ala.   112 :  556, 

575. 
Hinsdale  v.  Williams,  75  N.  C.  430 : 

492. 
Hiusou  V.  Adrian,  93  N.  C.  121 :  667. 
Hinton  v.  Adrian,  86  N.  C.  61 :  299. 
Hise  V.  Ins.  Co.  (Ky.),  13  S.  W.  369 : 

837. 
Hissem  v.  Johnson.   27  W.  Va.   652 : 

840. 
Hitchcock  V.  Holmes,  43  Ct.  528 :  792. 
V.  Way,  6  Adolph.  &  E.  943 :  41. 
Hixon  V.  George,  18  Kas.  253 :   263, 

374,  514,  515,  574,  583,  630. 
Hoback  v.  Hoback,  33  Ark.  399 :  640. 
Hodge  V.  Houston,  13  Ired.  108 :  725. 
Hodges  V.  Hickey,  67  Miss.  715:  528. 
V.  Hightovver,  68  Ga,  281:  76, 
648,  938. 
Hodo  V.  Johnson,  40  Ga.  439 :  76,  455, 

456,  606. 
Hodson  V.  Van  Fossen,  26  Mich.  69 : 

46,  685. 
Hoffman  v.  Fitzwilliam,  81  III.  521 : 
827.' 
V.  Hill  (Kas.),  28  P.  633 :  314. 
V.  Hoffman,  79  Tex.  189 :  659. 
V.  Junk.  51  Wis.  613:  147. 
V.  Neuhaus,    30   Tex.    633 :    603, 

626. 
V.  Savage,  15  Mass.  130 :  143. 
Hogan  V.  Hogan,  89  111.  427 :  376. 
V.  Manners,  33  Kas.  551  :  113,  115, 
188,  386. 


Hoge  V.  Hollister,  2  Tenn.   Ch.  606: 

44,  384,  419,  422. 
Hoisington    v.  Armstrong,   23  Kas. 
110:  312. 
V.  Huff,  24  Kas.  379 :  869,  885. 
Hoit  V.  Iloule,  19  Wis.  472 :  405. 
Hoitt  V.  Webb,  30  N.  H.  158 :  158, 188, 

215. 
Holbrook  v.  Finney,  4  Mass.  566 :  341. 
V.  Perry,  66  la.  386  :  464,  593,  632. 
V.  Wightman,   31    Minn.    171-2 : 
363,  363,  457,  491. 
Holcomb  V.  Coryell,  11  N.  J.  Eq.  548 : 
135. 
V.  Winchester,  53  Ct.  447  :  914. 
Holden  v.  Pinney,  6   Cal.    335:   177, 
193,  313,  637. 
V.  Stranahan,  48  la.  70 :  800, 
Holland  v.  Bergan,  89  Ala.  632 :  557. 
V.  Cruft,  20  Pick.  821 :  424. 
V.  Kreider,  86  Mo.  59 :  373,  374, 

379,  484. 
V.  Withers,  76  Ga.  667 :  147,  149. 
HoUenbeck  v.  Donnell,  94  N.  Y.  342 : 

720. 
Holliday   v.    Mausker,  44   Mo.   App. 

465:  871. 
Holliraan  v.  Smith,  39  Tex.  357 :  565, 

568,  570. 
Hollins  V.  Webb,  2  Leg.  R.  74 :  137. 
Hollovvay  v.  Holloway,  86  Ga.  576: 
78,  648. 
V.  Mcllhenny,  77  Tex.  657 :  106, 
125,  579. 
Holman  v.  Martin,  13  Ind.  553 ;  339. 
Holmes  v.  Carley,  31  N.  Y.  389 :  476. 
V.  Farris,  63  Me.  318:  914. 
V.  Holmes'    Estate,   36  Vt.   536 : 

193. 
V.  Tremper,  30  Johns.   89 :    364, 

787. 
V.  Winchester,  138  Mass.  543 :  135, 
144,  311,  904. 
Holt  V.  Williajns.  13  W.  Va.  704 :  103, 

547. 
Holtzinger  v.  Edwards,  51  la.  384: 

534. 
Hombs  V.  Corbin,  34  Mo.  App.  666 : 
769,  783,  930. 


TABLE   OF   CASES. 


H 


Home  Ins.  Co.  v.  Morse,  20  Wall.  451 : 

539,  510. 
Homer  v.  Sconfield,  84  Ala.  313 :  427. 
Homes  v.  Greene,  7  Gray,  299,  301 : 

189. 
Homestead  Ass'n  v.  Enslow,  7  S.  C. 

19 :  372,  373,  451. 
Homestead  Cases,  22  Gratt.  331 :  136, 

223,  327,  766. 
Honaker  v.  Cecil,  84  Ky.  201 :  551. 
Honone  v.  Bakewell,  6  B.   Mon.   67 : 

552. 
Hood  V.  Cordova,  17  Wall.  1 :  333. 
V.  Powell,  73  Ala.  171 :  428,  429, 
471.  579. 
Hook  V.  Richeson,  115  111.  431 :  404. 
Hopkins  v.  Drake,  44  Miss.  619 :  864. 

V.  Wolley,  81  N.  Y.  77 :  403. 
Hopper  V.  Parkinson,  5  Nev.  233 :  355, 

404. 
Hopt  V.   Utah,    110    IT.  S.  579:   539, 

540. 
Horgan  v.  Amick,  62  Cal.  401 :   241, 

816. 
Horn  V.  Arnold,  52  Tex.  161 :  688. 
V.  Tufts,  39  N.  H.  498 :  138,  189, 
215,  261,  393. 
Hornby  v.  Sikes,  56  Wis.  382 :  147. 
Hornthal  v.  McRae,  67  N.  C.  21 :  676. 
Horton  v.  Kelly,  40  Minn.  193 :  410, 
531,  875. 
V.  Summers,  62  Ga.  302 :  648. 
Hosea  v.  Talbert,  65  Ala.   173:  868, 

885. 
Hosford  V.  Wynn,  26  S.  C.   130 :  279, 

280,  445,  641. 
Hoskins  v.  Litchfield,  31  111.  137 :  582, 
605,  618,  689,  730,  748. 
V.  Wall,  77  N.  C.  349 :  334. 
Hoskinson  v.  Adkins,  77  Mo.  537 :  45. 
Hosmer  v.  Duggan,  56  Cal.  261 :  135, 
933. 
V.  Wallace,  97  U.  S.  575 :  135,  930, 
933,  936,  949. 
Hossfeldt  V.  Dill,  28  Minn.  469 :  816. 
Hotchkiss  V.   Brooks,  93  111.  386:  7, 

180,  265.  266,  495. 
Hot  Springs  R.  Co.  v.  Tyler,  36  Ark. 
205:  951. 


Houghton    V.    Hardenberg,    53    Cal. 
181:  941. 
V.  Lee,  50  Cal.  101 :  400,  441,  835. 
Houk  V.  Newman,  26  111.  App.  238 : 

775. 
Houlehan   v.   Rassler,  73  Wis.  557: 

911. 
Housatonic  Bank  v.  Martin,  1  Met 

294:  393. 
House  V.  Bait.   &  O.  R  Co.,  48  Md. 
130:  900. 
V.  Phelan  (Tex.),  19  S.  W.   140 : 
383. 
Houston,  etc.  R.  Co.  v.  Winter,  44  Tex. 

597 :  147,  158. 
Houx  V.  County  of  Bates,  61  Mo.  391 : 

421. 
Howard  v.  Farr,  18  N.  H.  457 :  882. 
V.  Lakin,  88  111.  36 :  912. 
V.  Logan,   81   111.    383 :   563,  571, 

586. 
V.  Mansfield,  30  Wis.  75 :  32. 
V.  Marshall,  48  Tex.  471 :  58. 
V.  North,  5  Tex.  316:  357. 
V.  Rugland,   35    Minn.  388 :  776, 

816,  817. 
V.  Tandy,  79  Tex.  450 :  785. 
V.  Williams,  2  Pick.  80:  798,  803. 
V.  Zimpleman  (Tex.),  14  S.  W.  62 : 
63. 
Howard  Ass'n  Appeal,  70  Pa.  St.  344 : 

24. 
Howard,  etc.  v.  Railroad  Co.,  102  Pa. 

St  220 :  866,  883. 
Howe  V.  Adams,  28  Vt  541 :  31,  215, 

402,  472. 
Howell  V.  Jones    (Tenn.),   19  S.   W. 
757 :  560,  630. 
V.  Bush,  54  Miss.  437:  511. 
V.  McCrie,  36  Kas.  636 :  44,  426. 
Howes  V.  Burt    130   Mass.    368 :  135, 

141. 
Howland  v.  Fuller,  8  Minn.  30 :  771. 
Howstienne  v.  Schnoor,  33  Mich.  274 : 

423. 
Howze  V.  Howze,  2  S.  C.  232  :  61,  268, 

■  644. 
Hoyt  V.  Howe,  3  Wis.  752 :  296,  395. 
V.  Hoyt  69  la.  174 :  144,  905. 


lii 


TABLE    OF    CASES. 


Hoyt  V.  Van  Alstyne,  15  Barb.  568: 

858. 
Hubbard  v.  Moss,  65  Mo.  647 :  815. 
V.  Norton,  10  Ct  423 :  945. 
V.  Russell,  73  Ala.  578 :  458. 
Hubbell  V.  Canaday,  58  111.  427 :  158, 

185,  188,  232,  495,  644. 
Huber  v.  Huber,  10  Ohio,  373 :  397. 
Hudginsv.   Sansome,   72   Tex.    231: 

90,  596,  657. 
Hudson  V.  Plets,  11  Paige,   180:  445, 

858. 
V.  Stewart,  48  Ala.  206:  615,  627. 
Huey's  Appeal,  29  Pa.  St.  219 :  516, 

523,  771. 
Huf  man's  Appeal,  81  Pa.  St  329 :  788. 
Hughes  V.  Hodges,  102  N.  C.  236 :  44, 

478,  490.  493. 
V.  United  States,   4   Wall.    232: 

931,  953. 
V.  Watt,  26   Ark.  228:  686.  698, 

730. 
Hugunin  v.  Dewey,  20  la,  368 :  396, 

516. 
Hume  V.  Gossett,  43  111.  299:  14,  216, 

329,  495. 
Humphrey  v.  Taylor,  45  Wis.  251: 

797,  798,  804. 
Hunnicutt  v.  Summey,  63  Ga.  586 : 

142. 
Hunt  V.  Johnson,  44  N.  Y.  27 :   396, 

397. 
Hunter  v.    Bosworth,   43  Wis.    583: 

873. 
V.  Law,  68  Ala.  365 :  269,  790. 
V.  Wooldert,  55  Tex.  433  :  400. 
Huntington  v.  Chishohn,  61  Ga.  270 : 

170,  749. 
Hurd  V.  Hixon,  27  Kas.  722 :  368. 
Hurt  V.  Cooper,  63  Tex.  362 :  394,  398. 
Huseman  v.  Sims,  104  Ind.  317  :  850, 

890. 
Huskms  V.  Haulon,  72  la.  37 :    385, 

380,  439. 
Hussey   v.   Moser,   70   Tex.  42:   432, 

596. 
Hutcheson  v.  Grubbs,   80  Va.   251 : 

101. 
V.  Powell,  92  Ala.  619 :  878. 


Hutchinson  v.   Ainsworth,   63    Cat 
286 :  164,  170,  384,  427. 
V.  Campbell,  1  Casey  (Pa.),  273 : 

507,  548. 
V.  McNally,  85  Cal.  619:  463,  717. 
V.  Roe,  44  Mich.  389:  812. 
V.  Whitmore  (Mich.),  51  N.  W. 
451 :  782,  816,  863. 
Hutton  V.  Frisbie,  37  Cal.  475 :  948. 
Hyatt  V.  Spearman,  20  la.  510 :  179, 

282,  284,  333. 
Hyman  v.  Kelly,  1  Nev.  148 :  720. 
Hyslop  V.  Clarke,  14  Johns.  458,  465 : 
424. 


I. 


Ice  V.  McLain,  14  111.  64 :  781. 

Iken  V.  Olenick,  42  Tex.  195 :  188, 250, 

251. 
Iliff  V.  Arnott,  31  Kas.  672 :  866. 
Illinois  Glass  Co.  v.  Hoi  man,  19   111. 

App.  30 :  826,  880. 
Ilsley  V.  Stubb,  5  Mass.  280 :  860. 
Inge  V.  Cain,  65  Tex.  75  :  84,   96,  250, 
297,  381,  398,  399,  853. 
V.  Murphy,  14  Ala.  289  :  696. 
Ingle  V.  Lea,  70  Tex.  609:  251,  252. 
Innis  V.  Templeton.  95  Pa.  St.  262 :  45. 
In  re  Allen,  78  Cal.  294 :  147,  164, 170, 
177,  182,  235. 
Armstrong,  80  Cal.  71 :  153. 
Baldwiu,   71  Cal.   74:    801,   802, 

866. 
Bowman,  69  Cal.  245 :  272. 
Cross.  2  Dill.  320 :  550. 
Crowey,  71  Cal.  302 :  153,  186,  235. 
Handlin,  3  Dill.  290 :  903. 
Henkel,  2  Sawy.  305  :  509. 
Kennedy.  2  S.  C.  227 :  268. 
Lamb's  Estate  (Cal.),  30  P.  508: 

771. 
Lambson,  2  Hughes,  233 :  59. 
Noah,  73  Cal.  592 :  153,  178,  184, 

235,  272. 
Phelan,  16  Wis.  76 :  147. 
Pratt,  1  Cent  L  J.  290 :  523. 
Schmidt's  Estate  (Cal.),  29  Pac. 
714:  732. 


TABLE   OF   OASES. 


liii 


In  re  Sliarp,  78  Cal.  483 :  272,  606. 
Tertelling,  2  Dill.  339 :  188. 
Welch.  43  Minn.  7 :  527. 
Williams'  Estate  (Pa.),  21  Atlan. 

673:  646. 
Worcester's  Estate,  60  Vt.  420: 
633. 
Ins.  Co.  V.  Baker,  71  Ind.  103:  391. 

V.  Curry,  13  Bush,  312 :  106, 
Int.  etc.  R  Co.   v.   Tinimerman,   61 

Tex.  660 :  649. 
Irion  V.  Mills,  41  Tex.  310 :  123,  360. 
Irvin  V.  Garner,  50  Tex.  448 :  346. 
Irwin  V.  Lewis,  50  Miss.  363 :  181,  528. 
V.  State,  6  Lea,  588 :  916. 
V.  Taylor,  48  Ark.  226:  310,  671. 
745. 
Isaacs  V.  Tinley,  58  Ga.  457 :  355. 
Ives  V.  Mills,  37  111.  73 :  44,  564,  853, 
918,  919. 


J. 


Jacks  V.  Bigham,  36  Ark.  481 :  881. 
Jackson  v.  Bowles,  67  Mo.  609 :  652. 
V.  Jackson,  13  Ired.  159  :  725. 
V.  Du  Bose,  87  Ga.  761 :  558,  561, 

741. 
V.  Leek,  12  Wend.  105 :  429. 
V.  Parrott,  67  Ga.  210 :  544,  548. 
V.  Reid,  32  O.  St.  443 :  230,  563. 
V.  Rowell,  87  Ala.  685  :  701. 
V.  SheltoQ,  89  Tenu.  82:   31,  71, 

139,  378. 
V.  Van  Zandt,  12  Johns.  176:  41. 
Jacobs  V.  Hawkins,  63  Tex.   1 :    191, 

196,  388.  399,  571,  750. 
Jacoby   v.    Distilling  Co.,   41    Minn. 

227,  230 :  6,  181,  213,  509. 
Jafifers  v.  Aneals,  91  111.  488:  532. 
Jaffrey  v.    McGough,   88    Ala.    648, 

650 :  2,  151,  158,  159. 
James  v.  Clark,  89  Ala.  606 :  627. 
James'  Estate,  23  Cal.  415 :  492. 
Jaquith  v.  Scott,  63  N.  H.  5 :  808. 
Jardain  v.   Association.  44  N.  J.  L. 

376:  840. 
Jarman  v.  Jarman,  4  Lea,  675 :  559, 
582. 


Jarrell  v.  Payne,  75  Ala.  577:    458, 

555,  645,  665. 
Jarvais  v.  Moe,  38  Wis.  440:  6,  30, 

147,  180,  564,  565,  570,  573. 
Jefferies  v.  Allen,  29  S.  C.  501 :  641. 
Jeffers  v.  Radcliflf,  10  N.  H.  242 :  135. 
Jelmek  v.  Stepau,  41  Minn.  412 :  263, 

377. 
Jenkins  v.  Bank,  106  U.  S.  574 :  709. 
V.  Bobbitt,  77  N.  C.  385  :  300,  490. 
V.  Harrison,  66  Ala.  345 :  118,385, 

424,  427. 
V.  Lovelace,  62  Ala.  271 :  667. 
V.  McNall,    27    Kas.    532:    798, 

802. 
V.  Simmons,  37  Kas.  496 :  55,  426. 
V.  Volz,   54  Tex.   636 :    138,  142, 
194,  222,  719. 
Jenness  v.  Cutter,  12  Kas.  516 :  262, 

376,  378.  690. 
Jennings  v.  Carter,  53  Ark.  242 :  755. 
Jenny  v.  Jenny,  24  Vt.  324 :  424. 
Jergens  v.  Schiele,   61  Tex.  255 :  709. 
Jewell  V.  Clark's  Ex'rs,  78  Ky.  398: 
205.  286. 
V.  Grand  Lodge,  41  Minn.  405 : 

765. 
V.  Porter,  31  N.  H.  34 :  392. 
V.  Weed,  18  Minn.  272 :  25. 
Jewett  V.  Brock,  32  Vt.  65 :  215,  401, 
472. 
V.  Guyer,  38  Vt  209,  218 :  883. 
V.  Stockton,  3  Yerg.  (Tenn.)  492 : 
135. 
J.  I.  Case    Company    v.    Joyce,    89 

Tenn.  337,  347 :  38,  136. 
Johns  V,  Chitty,  1  Burr.  32 :  859. 
Johnson  v.  Adleman,  35  111.  265  :  683. 
V.  Brook,  31  Miss.  1 :  380. 
V.  Bryan,  62  Tex.  624  :  431. 
v.  Dobbs,  69  Ga.  605 :  785,  910. 
V.  Edde,  58  Miss.  664 :  785,  864. 
V.  Fay,  16  Gray,  144 :  279. 
V.  Fletcher,    54    Miss.    628 :    766, 

910. 
V.  Franklin,  63  Ga  378 :  241, 814, 

815. 
V.  Gaylord,  41  la,  362 :  31,  492, 
590,  591,  593,  594,  621. 


liv 


TABLE   OF    CASES. 


Johnson  v.  Goss  (N.  H.,  not  reported) : 

392. 
V.  Griffin,  etc.  Co.,  55  Ga.  691 : 

355. 
V.  Hahn,  4  Neb.  149 :  857. 
V.  Harrison,   41   Wis.    386 :    147, 

294,  462. 
V.  Hart,  6  Watts  &  S.  319:  143. 
V.  Johnson,  13  R.  I.  468 :  136. 
V.  Kessler,  87  Ky.  458 :  167. 
V.  Montgomery,  51  111.  185 :  555. 
V.  Moser,  66  la.  536 :  179,  282. 
V.  Poullain,  62  Ga.  376 :  405,  488. 
V.  Raynor,  6  Gray,  107 :  258. 
V.  Richardson,  33  Miss.  462:   115, 

225. 
V.  Taylor,  40  Tex.  360 :  427,  598, 

644. 
V.  Towsley,  13  Wall.  72 :  135,  931, 

933,  936,  937,  941. 
V.  Turner,  29  Ark.  280 :  195,  547, 

563,  574,  645,  651. 
V.  Vandervort,  16  Neb.  144 :  397. 
V.  Van  Velser,  43  Mich.  208 :  432. 
Johnston  v.  Davenport,  42  Ala.  317 : 

788. 
V.  Dunavan,  17  Brad.   (111.  A  pp.) 

59:  582. 
V.  Martm  (Tex.),  16  S.  W.  550 : 

192. 
V.  McPherran,  81  la.  230 :  521. 
V.  Savings  Union,  75    Cal.    134 : 

600. 
Joiner  v.  Perkins,  59  Tex.   300 :  340, 

346. 
Jolly  V.  Lofton,  61  Ga.  154 :  488,  526, 

828. 
Jones  V.  Avery,  50  Mich.  326 :  824. 
V.  Blumenstein,  77  la.  361 :  534, 

562,  563,  585. 
V.  Brandon,  48  Ga.  593 :  279. 
V.  Britton.  102  N.  C.  166 :  9,  299, 

300.  330,  438. 
V.  Cable  (Pa.),  7  A.  791 :  143. 
V.  Clifton,  101  U.  S.  228 :  396. 
V.  Comm'rs,  85  N.  C.  278:  855. 
V.  Crumley,  61  Ga.  105 :  122,  777. 
V.  Currier,  65  la.  533 :  396. 
V.  Dow,  18  Wis.  241 :  410,  723. 


Jones  V.  Ehrlisch.  65  Ga.  546 :  785. 

V.  Gilbert,  135  111.  27 :  265,  618. 

V.  Goff,  63  Tex.  248 :  419,  430. 

V.  Hart,  62  Miss.  13:  514,  528. 

V.  Jones,  15  Tex.  147 :  598. 

V.  Miller,  17  S.  C.  380 :  78. 

V.  Posteli,  Harper  (S.  C),  92 :  453. 

V.  Ragland,  4  Lea,  543 :  268. 

V.  Robbms,  74  Tex.  615:  430. 

V.  Roper,  86  Ala.  210 :  428. 

V.  Scott,  10  Kas.  33 :  873,  874. 

V.  Spear,  21  Vt.  426 :  424. 

V.  Tainter,  15  Mmn.  512 :  940. 

V.  Tracy,  75  Pa.  St.  417 :  835,  899. 

V.  Trammell,  27  Tex.  133 :  570. 

V.  Waddy,  66  Cal.  457  :  211. 

V.  Yoakam,  5  Neb.  265 :  550,  950, 
951. 
Jordan  v.  Autrey,  10  Ala.  226 :  778. 

V.  Clark,  81  111.  465 :  613. 

V.  Godman,  19  Tex.  273 :  290,  360, 
387,  560,  570,  582. 

V.  Imthurn,  51  Tex.  276:  190. 

V.  Peak.   38  Tex.   429 :  297,   373, 
384,  421,  550. 

V.Strickland,  42  Ala.  315:    615, 
788. 
Juchert  v.  Johnson  (Ind.  Sup.),  9  N.  K 

413:  391. 
Judd  v.  Randall,  36  Minn.  12 :  931. 
Judge    of    Probate    v.   Simonds,   46 
N.  H.  368 :  261,  492,  625,  707. 
Junker  v.  Hustes,  113  Ind.  524:  764, 

829,  923. 
Justice  v.  Baxter,  93  N.  C.  405 :  366. 


K. 


Kable    v.   Mitchell,   9  W.   Va.   492: 

103. 
Kaes  V.  Gross,  92  Mo.  647 :    377,  457, 

464,  558,  562,  652. 
Kahoon  v.  Krumpus,  13  Neb.  321 : 

730,  884. 
Kaiser  v.  Seaton,  62  la.  463 :  836. 
Kansas  City,  etc.  R.  Co.  v.  Gough,  35 

Kan.  1 :  901. 
Kansas  City  Mining,  etc.  Co.  v.  Clay 

(Arizona),  29  Pac.  9 :  942. 


Kansas  Lumber  Co.  v.  Jones, 

195:  953. 
Kansas  Pac.  R  Co.  v.  Dunmeyer,  113 

U.  S.  629 :  144.  939. 
Karn  v.  Hanson,  59  Mich.  380 :  564. 
Kaser  v.   Haas,   27  Minn.  406:   136, 

137. 
Raster  v.  McWilliams,  41   Ala.  302 : 

575. 
Kaufman   v.  Fore,  73  Tex.  308 :  563. 
Kean  v.  Newell.  1  Mo.  754:  671. 
Kearney  v.  Kearney,  72  Cal.  591 :  628, 

677. 
Keefer  v.   Guffin,   38  111.  App.  633 : 

856. 
Keel  V.  Larkin,  73  Ala.  493 :  19,  80, 

227.  665,  703,  878. 
Keener  v.  Goodsou,  89  N.  C.  273 :  103, 

300,  679. 
Keiffer  v.  Barney,  31  Ala.  196:  64, 

83,  97. 
Keith  V.  Horner,  32  111.  524:  349. 

V.  Hyndman,  57  Tex.  425 :   186, 
333,  227. 
Kellar  v.   Houlihan,   32  Minn.  486: 

365. 
Keller  v.  Bricker,  64  Pa  St.  379 :  847. 
V.  McMahan,  77  Ind.  62 :  761, 914, 

916. 
V.  Struck,  31  Minn.  446 :  295. 
Kellerman  v.  Aultman,  30  Fed.  888 : 

9,  296. 
Kellersberger   v.  Kopp,  6  Cal.  565 : 

137,  140. 
Kelley  v.    McFadden,   80    Ind.  536: 

764,  863,  878,  919. 
Kellogg  V.  Graves,  5  Ind.  509 :  788, 
857. 
V.  IngersoU,  8  Mass,  97 :  945. 
V.  Malin,  50  Mo.  496 :  945. 
V.  Schuyler,  8  Denio,  73 :  914. 
V.  Waite,  18  Allen,  539 :  840. 
Kelly  V.  Aired,  65  Miss.  495  :  460,  467. 
V.  Baker,  10  Minn.  184 :   146,  181, 

188,  818,  813,  833,  840,  566. 
V.  Dill,  83  Minn.   435 :    187,  198, 
394,  303,   304,  305,  309,  566, 
789,  883. 
V.  Duffy,  31  O.  St.  437:  2.30. 


TABLE    OF    CASES 
Kas. 


It 


Kelly  V.  Garrett,  67  Ala  304 :  19,  515, 
564,  703. 
V.  McGuire,  15  Ark.  555 :  33. 
V.  Stepiiens,  39  Ga.  466 :  338. 
V.  Whitmore,  41  Tex.  647 :   596, 
688. 
Kelsay  v.  Frazier,  78  Mo.  Ill :  388, 889, 

464. 
Kelsey  v.  Kelley  (Vt.),  23  A.  597 :  519, 

711. 
Kemerer  v.  Bournes,  53  la.  172  :  381, 

715,  716. 
Kemp  V.  Kemp,  43  Ga.  523 :  456,  463, 

640,  657. 
Kempner  v.  Comer,  73  Tex.  196 :  399, 
526. 
V.  Heidenheimer,    65    Tex.   587: 
388. 
Kendall  v.  Clark,  10  Cal.  17 :  740. 
V.  Kendall,  43  la.  464 :  683. 
V.  Powers,  96  Mo.  143:  131,  374, 
484,  603. 
Kenley  v.  Bryan,   110  111.  653:  317, 
630. 
V.  Hudelson,  99  111.  493 :  70,  563, 
586. 
Kennaird  v.  Adams,  11  B.  Mon.  103 : 

584. 
Kennedy  v.  Nunan,  52  Cal.  326:  117, 
120. 
V.  Stacey,  57  Tenn.  380:  11,  381, 
373,  377,  384,  469,  546. 
Kennerly  v.  Swartz,  83  Va  704 :  16, 

101. 
Kensell  v.  Cobleigh,  63  N.  H.  298: 

715. 
Kent  V.  Agard,  33  Wis.  150 :  158,  919. 
V.  Lasley,  48  Wis.  257,  264:  147, 
200,  478. 
Kenyon  v.  Baker,  16  Mich.  373 :  798, 
805,  812. 
V.  Gould,  61  Pa  St.  293 :  10,  333, 
761. 
Kerchner  v.  Singletary,  15  S.  C.  535  : 

670. 
Kerley  v.  Kerley,  13  Allen,  387 :  858. 
Kern's  Appeal,  130  Pa  St.  533  :  646, 

790. 
Kessinger  v.  Wilson,  53  Ark.  403 :  653. 


Ivi 


TABLE   OF   CASES. 


Kessler  v.  Draub,  52  Tex.  575 :  7,  85, 
87,  94,  317,  592. 
V.  Hall,  64  N.  C.  60 :  354. 
Kestler  v.  Kern,  2  Ind.  App.  488 :  7G4, 

889,  897. 
Ketchin  v.  McCarley,  20  S.  C.  1 :  157, 
169,  754. 
V.  Patrick,  32  S.  C.  443 :  693,  706. 
Ketchum  v.  Allen,  46  Ct.  416 :  918. 

V.  Evertson,  13  Johns.  359:   607. 
Keyesv.  Bump,  59  Vt.  395:  26,  192, 
567. 
V.  Hill,  30  Vt.  759 :  629. 
V.  Rines,  37  Vt.  260  :  215,  400,  445. 
V.  Scaulan,  63  Wis.  345 :  389,  478. 
V.  Wood,  21  Vt.  331 :  347. 
Keyser  v.  "^ice,  47  Md.  203 :  888,  890. 
Keyte  v.  Perry,  25  Mo.  App.  394 :  121, 

603,  645. 
Kibbey  v.  Jones,  7  Bush,  243 :  346. 
Kidd  V.  Lester,  46  Ga.  231 :  77. 
Kilbourn  v.  Deraming,  2  Vt.  404  :  802, 

859. 
Kilgore  v.  Beck,  40  Ga.  296 :  732. 
Kimball  v.   Blaisdell,  5   N.  H.  533: 
392. 
V.  Jones,  41  Minn.  318 :  803. 
V.  Wilson,  59  la.  638 :  284,  558,  675. 
V.  Woodruff,  55  Vt  229:  817. 
Kimble  v.  Esworthy,  6  Bradw.  (111.) 

517 :  336,  348. 
Kimbrel  v.  Willis,  97  111.  491:  87,  94, 

265,  580,  586. 
Kincaid  v.  Burem,  9  Lea,  553 :  607. 
Kinder  V.  Lyons,  38  La.  Ann.  713: 

39,  172. 
Kinderley  v.  Jarvis,  25  L.  J.  Ch.  541 : 

24. 
King  V.  Dedham  Bank,  15  Mass.  447 : 
768. 
V.  Gilleland,  60  Tex.  271 :  604. 
V.  Gotz,  70  Cal.  236 :  117,  120,  153, 

177,  667. 
V.  Harter,  70  Tex.  581 :  253. 
V.  McCarley,  32  S.  C.  264 :  756. 
V.  Moore,  10  Mich.  538 :  472,  546, 

817. 
V.  Ruble,  54  Ark.  418 :  888,  921. 
V.  Skellie,  79  9a.  149 :  647. 


King  V.  Sturges,  56  Miss.  606:  116, 
147,  186,  771. 
V.  Welburn,  83  Mich.  195 :  139, 184. 
Kingman  v.   Higgins,    100   IIL    319: 

117,  120,  495,  586,  587,  614. 
Kingsley  v.  Kingsley,   39   Cal.   665 : 

136,  140,  143,  950. 
Kinney  v.  Degman,  12  Neb.  237:  941. 
Kipp  V.  Bullard,  30  Mmn.  84:  676. 
Kirby  v.  Giddings,  75  Tex.  679 :  317. 

V.  Reese,  69  Ga.  452:  117,  119. 
Kirk  V.  Cassady  (Ky.),  12  S.  W.  1039 : 

729,  745. 
Kirkland  v.  Little,  41  Tex.  460 :  598. 
Kirkpatrick  v.  White,  29  Pa.  St.  176 : 

322. 
Kirksey  v.  Cole,  47  Ark.  504 :  652. 
Kirkwood  v.  Domnan  (Tex.),  16  S.  W. 
428 :  71,  598. 
V.  Koester,  11  Kas.  471 :  188. 
Kitchell  V.  Burgwin,  21  111.  40 :  6,  44, 

64,  179,  564,  698. 
Kite  V.  Kite,  79  la.  491 :  590. 
Kitterlin  v.  Milwaukee  Ins.  Co.,  134 

111.  647 :  257,  397. 
Klenk  v.  Knoble,  37  Ark.  288 :  185, 

239.  315,  431,  631. 
Kline  v.    Ascension   Parish,   33   La, 

Ann.  562:  910. 
Knabb  v.  Drake,  23  Pa.  St.  489 :  316, 

443,  785. 

Knapp  V.  Bartlett,  23  Wis.  68 :  797, 

798,  804. 

V.  Gass,  63  111.  492 :  619,  630. 

V.  O'Neill,  46  Hun,  317 :  809. 

Kneetle  v.  Newcomb,  22  N.  Y.  249 : 

541,  787,  869. 
Knevan  v.  Speeker,  11  Bush  (Ky.),  1 : 

516. 
Knight  V.  Leak,  2  Dev.  &  Bat.  133 : 
725. 
V.  Leary,  54  Wis.  459 :  953. 
V.  Paxton,  124  U.  S.  552 :  376. 
V.  U.  S.    Land   Ass'n,  142  U.  S. 

161:  940. 
V.  Whitman,  6  Bush,  51 :  761. 
Knopf  V.  Hansen,  37  Minn.  215:  556. 
Knox  V.  Hanlon,  48  la.  253 :  593. 
V.  Wilson,  77  Ala,  309 :  875,  885. 


TABLE    OF   CASES. 


IVll 


Kochling  v.  Daniel,  83  Mo.  54 :  547, 

644. 
Kocourek  v.  Marak,  54  Tex.  201 :  391. 
Koons  V.  Ritteuhause,  28  Kas.  359: 

182. 
Kottenbroeck  v.  Cracraft,   3G  O.  St 

584:  427. 
Kraft  V.  Baxter,  38  Kas.  351 :  942. 
Krauser  v.  Ruckel,  17  Hun,  463 :  824. 
Kreider'8  Estate,  135  Pa.  St  578:  917. 
Kresin  v.   Mau,   15   Minn.  116:    137, 

146,  149,  158,    181,  221,  232, 

304,  566. 
Krueger  v.  Pierce,  37  Wis.  269 :  203. 
Kruger  v.  Le  Blanc,  75   Mich.  424 : 

125,  138. 
Kulage  V.  Schueler,  7  Mo.  App.  250 : 

770,  874,  918,  920. 
Kuntz    V.    Baehr,   28  La.   Ann.   90: 

730. 
V.  Kinney,  33  Wis.   510 :  30,  764, 

827. 
Kupferman  v.  Buckholts,  73  Ga.  778 : 

241,  815. 
Kurz  V.  Brusch,  13  la.  371 :  188,  219, 

232,  275,  294. 
Kutch  V.  Holly,  77  Tex.  220 :  571. 
Kuttner  v.  Haines,  35  111.  App.  307  : 

108,  115. 
Kyle  V.  Kavenaugh,  103  Mass.  356 : 

607. 
V.  Montgomery,  73  Ga.  337 :  825. 
Kyte  V.  Peery,  25  Mo.  App.  394 :  603. 


L. 


Labaree  v.  Wood,  54  Vt  452 :  743. 
Lacey  v.  Clements,  36  Tex.  663 :  138, 

582. 
Lachman   v.  Walker,   15  Nev.   422: 

11,  170,  174,  238. 
Lackej'^  v.  Bostwick,  54  Ga.  45:  355. 
Laconia  Bank  v.  Rollins,  63  N.  H.  66  : 

715. 
Lacy  V.  Lockett  (Tex.),  17  S.  W.  916: 

658. 
V.  Rollins,  74  Tex.    566 :    81,   94, 

381,  597. 
Ladd  V.  Adams,  66  N.  G  164 :  30a 


Ladd   V.  Dudley,  45  N.  H.  61:   279, 

346,  348. 

V.  Ladd.  14  Vt  194:  424. 
Lahiff's  Estate,  86  Cal.  151 :  606,  762. 
Laing  v.  Cunningham,   17   Ta.    510: 

282. 
Lake  v.  Page,  63  N.  H.  318 :  383,  429, 

625. 
Lallement  v.  Poupeuy,  15  Mo.  App. 

577:  666. 
Lalleraont  v.  Detert,  96  Mo.  182:  666, 

669,  672. 

Lamar  v.  Chisholm,  77  Ga.  306 :  825. 

V.  Sheppard,  80  Ga.  25 :  329,  380. 

Lamb  v.   Chamness,  84  N.   C.   379: 

11,  279,  327,  676. 

T.  Davenport  18  Wall.  307 :  925, 

945,  949. 
V.  Mason,  50  Vt  350 :  1,  40,  291, 

347,  633,  743. 

V.  McConkey,  76  la.  47 :  282,  285. 
V.  Shays,  14  la.  567 :  675. 
V.  Wogen,  27  Neb.  236 :  66. 
Lambert  v.  Kinnery,  74  N.  C.  348: 
372,  480,  730. 
V.  Powers,  36  la.  18 :  727. 
Lamore  v.  Frisbie,  42  Mich.  186 :  583. 
Lanahan  v.  Sears,  102  U.  S.  318 :  44, 

228.  384,  419,  550,  554. 
Land  Co.  v.   Gas  Co.,  43  Kas.  518: 

434. 
Lane  v.  Baker,  2  Grant's  Cas.  (Pa.) 
424 :  322,  323,  760. 
V.  Maine  Ins.  Co.,  12  Me.  44 :  950. 
V.  Partee,  41  Ga.  202 :  442. 
V.  Phillips,  69  Tex.  240 :  7,  80. 
V.  Riciiardson.  104  N.  C.  642  :  777. 
V.  Morey,  40  Minn.  396 :  950. 
Langford  v.  Driver,  70  Ga.  588:  122, 
687. 
V.  Fly,  7  Humph.  585 :  325. 
V.  Lewis,  9  Bax.  127 :  20. 
Langton   v.   Marshall,   59   Tex.   296: 

431. 
Langston  v.  Maxey,  74  Tex.  155 :  181, 
573,  579. 
V.  Murphy,  31  111.  App.  188 :  850. 
Lausden  v.  Hampton,  38  111.  App.  115 : 
856. 


Ivm 


TABLE    OF    OASES, 


Laramore  v.  McKinzie,  60  Ga.  533 : 

142,  550. 
Larence  v.  Evans,  50  Ga.  216 :  41,  64, 

279,  687. 
Larey  v.  Baker,  85  Ga  687 :  703. 
Larkin's  Estate,  132  Pa.  St.  554 :  779. 
Larkin   v.  McAnnally,  5   Phila.  17: 

919. 
Larrison's  Appeal,  36  Pa.  St.  130 :  856. 
Larson  v.  Reynolds,  13  la.  579 :  381, 

384,  388,  420,  532,  718,  747. 
V.  Butts,  22  Neb.  370 :  47,  396. 
La  Rue  v.  Gilbert,  18  Kas.  220 :  50,  60, 

410,  412. 
Lashaway  v.  Tucker,  61  Hun,  6 :  817. 
Lassen    v.   Vance,  8    Cal.   271 :  337, 

340,  347. 
Lathrop  v.  Ass'n,  45  Ga.  483 :  58,  78, 

388. 
V.  Singer,  39  Barb.  396 :   293,  333, 

323,  761. 
Lauck's  Appeal,  13  Harris  (Pa.),  426 : 

507,  516,  542,  547. 
Laughlin  v.  Wright,  63  Cal.  113 :  170, 

177,  183,  184,  235,  274. 
Lavillebauve  v.  Frederic,  20  La.  Ann. 

374:  873. 
Lawrence  v.  Grambling,  19  S.  C.  461 : 

354. 
Law  V.  Butler,  44  Minn.  482 :  387. 
Lawler  v.  Yeatman,  37  Tex.  669 :  726, 

729. 
Lawyer  v.  Slingerland,  11  Minn.  447 : 

423. 
Lawson    v.   Pringle,   98   N.    0.   450: 

551. 
Lay  V.  Gibbons,  14  la.  377 :  410,  727. 

V.  Templeton,  59  la.  684 :  437. 
Layon  v.  Grange  (Kas.),  29  P.  585 : 

574. 
Lazar  v.   Caston,  67   Miss.  275 :  409, 

718. 
Lazell  V.    Lazell,  8   Allen,  576 :  185, 

232,  500,  695,  702. 
Leach  v.  Fowler,  22  Ark.  145 :  518. 
V.  Leach,  65  Wis.   284 :  396,  478. 
V.  Pillsbury,  15  N.  H.  137 :  189. 
Leak  v.  Gay,  107  N.  C.  468 :  21,  716. 
Leake  v.  King,  85  Mo.  413 :  84,  558. 


Lear  v.   Heffner,  28  La.    Ann.  829: 
339. 
V.  Totten,  14  Busli,  104 :  6,  269,  456, 
490. 
Learned  v.  Corley,  43  Miss.  689 :  25. 

V.  Cutler,  18  Pick.  9 :  545. 
Loavell  v.  Lapowski  (Tex.),  19  S.  W. 

1004:  741. 
Leavenworth,  etc.  R.  Co.  v.  U.  S.,  93 

U.  S.  733 :  946. 
Leavitt  v.  Holbrook,  5  Vt.  405 :  859. 
V.  Metcalf,  2  Vt.  342 :   794,  836. 
859. 
Le  Blanc  v.  St.  Germain,  25  La.  Ann. 

289 :  373. 
Ledford,  Matter  of,  1   Copp's  Land 

Laws,  361 :  927. 
Lee  V.  Eure,  93  N.  C.  5 :  300. 
V.  Hale,  77  Ga.  1 :  76,  456. 
V.  Ins.  Co.,  6  Mass.  219 :  385,  425. 
V.  Johnson,  116  U.  S.  48 :  936. 
V.  Kingsbury,  13  Tex.  68:  84,  96, 

297,  373,  533,  747. 
V.  Miller,  11  Allen,  37:    164,  182, 

192,  195,  304. 
v.  Mosely,  101  N.  C.  311 :  493, 560. 
V.  Welborne,   71   Tex.   500:   137, 
241. 
Leech  v.  Dawson,  23  Fed.  624 :  709. 
Leeds  v.  Gifford,  5  Atl.  (N.  J.)  795 : 

351. 
Lehman  v.  Bryan,  67  Ala.  558 :   564, 
567,  579. 
V.  Kelley,  68  Ala.  192 :  536,  930. 
V.  Warren,  53  Ala.  535 :  673. 
Leibner  v.  Railroad   Co.,  49  la.  688 : 

896. 
Leggate  v.  Clark,  111  Mass.  308:  45. 
Leggett  V.  Van   Horn,  76  Ga.  795: 

838,  829. 
Legro  V.  Lord,  10  Me.  165 :  514,  516. 
Le  Guen  v.  Gouverneur,  1  John.  Caa 

436 :  747. 
Lehndorf  v.  Cope,  122  111.  333 :  349. 
LenhofC  v.  Fisher  (Neb.),  48  N.  W. 

821 :  818,  911. 
Lenoir  v.  Weeks,  20  Ga.  596 :  800. 
Leonard  v.  Clinton,  26  Hun,  288 :  837. 
V.  Ingraham,  58  la.  406 :  558. 


TABLE   OF   CASES. 


lix 


Leonard  v.  Maginnis,  34  Minn.  506 : 
863. 
V.  Mason,  1  Lea,  384 : 
Leonis  v.  Lazzarovich,   55   Cal.  53: 

384. 
Lessley  v.  Pliipps,  49  Miss.  790:  181, 

279,  30G,  528,  730,  744.  76G. 
Letchford  v.  Gary,  52  Miss.  791 :  181, 

528,  686,  905,  909. 
Leupold  V.  Krause,  95  111.  440 :  123, 

265,  349,  701,  709,  730. 
Levasser  v.  Washburn,  11  Gratt.  572, 

577:  14. 
Levicks  v.  Walker,  15  La.  245 :  869. 
Levison  v.  Abrahams,   14  Lea,  336 : 
583. 
V.  Abrahams,  9  Lea,  178 :  559. 
Levy  V.  Moog,  69  Ala.  63 :  871. 

V.  Williams,  79  Ala.  171 :  902. 
Lewis  V.  Curry,  74  Mo.  49 :  377. 

V.  McGraw,  19  111.  Ap.  318:  265. 
V.  Sellick,  69  Tex.  379 :  142. 
V.  Wetherell,  36  Minn.  386 :  950, 
953. 
Lewton  v.  Hower,  18  Fla  872,  882 : 

362,  925. 
Liebstrau  v.  Goodsell,  26  Minn.  417 : 

181,  294,  566. 
Lies  V.  DeDiablar,  13  Cal.  327:   5, 

485. 
Linch  V.  Broad,  70  Tex.  92 :  229,  243, 
250,  596,  629. 
V.  Mclntyre,  78  Ga.  209 :  17,  122, 
375. 
Lincoln  v.  Claflin,  7  Wall.  132 :  348. 

V.  Rowe,  64  Mo.  138 :  288,  668. 
Lindenmuller  v.  People,  21  How.  (N. 

Y.)  156 :  33,  34. 
Lindley  v.  Groff  (Minn.),  34  N.  W. 
26 :  135. 
V.  Miller,  67  111.  244:  777,  944. 
Lindsay  v.  Murphy,  76  Va.  428 :  15, 
560. 
V.  Norrill,  36  Ark.  545 :  239,  651. 
Lindsey  v.  Brewer,  60  Vt.  627:  66, 
519,  711. 
V.  Fuller,  10  Watts,  144 :  807. 
V.  Hawes,  2  Black,  554 :  94L 
V.  Veasy,  62  Ala.  421 :  947. 


Line's   Appeal,  2  Grant's  Cas.  (Pa.) 

198 :  668. 
Linkeuhoker  v.  Detrick,  81  Va.  44: 

230,  549. 
Linn  Co.   Bank  v.   Hopkins,   28  P. 

606 :  149. 
Linscott  V.  Lamart,  46   la.   312 :  156, 

284,  413,  668. 
Linsey  v.  McGannon,  9  W.  Va.  154 : 

11,  170. 
Linton  v.  Crosby.  56  la.  386 :  772. 
Lishy  V.  Perry.  6  Bush  (Ky.),   515 : 

516,  667. 
Litchfield  v.  The  Register,  9  WalL 

575 :  941. 
Lithgow  V.  Kavenaugh,  9  Mass.  161 : 

555. 
Littell  V.  Jones  (Ark.),  19  S.  W.  497: 

331. 
Little  V.  Bird  well,  27  Tex.  690 :  627. 
V.  McPherson,  76  Ala.  552 :  790. 
Little's  Guardian  v.  Woodward,   14 

Busli,  587:  32,  269.  1587. 
Little  John  v.  Egerton,  77  N.  C.  379 : 

133,  300,  480,  618. 
Livermore  v.    Webb,   56    Cal.    492: 

372. 
Liverpool  Ins.  Co.  v.  Crede,  65  Tex. 

118:  252. 
Lloyd  V.  Durham,  1  Winst.  288 :  436. 

V.  Frank,  30  Wis.  306 :  410. 
Loan  Co.  v.  Blalock,  76  Tex.  85 :  537. 
Lock  V.   Johnson,  36  Me.   464:  896, 

899. 
Locke  V.  Rowell,  47  N.  H.  46 :  183, 

373,  559,  592. 
Lockwood  V.   Youuglove,   37   Barb. 

505 :  785,  810. 
Loeb  V.  McMaiion,    89  III.   487:  31, 

605,  618. 
V.  Richardson,  74  Ala.  311 :  790. 
Logan  V.  Courtown,  13  Beav.  22 :  24 

V.  Walton,  12  Ind.  639 :  449. 
Loomis  V.  Geeson,  62  111.  13 :  327,  730, 

740. 
V.  Smith,  37  Mich.  595 :  874. 
Long  V.  Bullard,  59  Ga.  355 :  122, 55a 
V.  Mostyn,  65  Ala.  543 :  416,  428, 

430. 


Ix 


TABLE    OF    CASES, 


Long  V.  Murphy,  27   Kas.  375,  380: 
524. 
V.   Walker,    105   N.   C.    90,   108: 
6,  52,  367,  489,  677,  678,  680, 
952. 
Longey  v.  Leach,  57  Vt.  377 :  45. 
Longley  v.  Daly  (S.  D.),   46  N.  W. 

247 :  546.  779,  883. 
Lord  V.  Hardie,  82  N.  C.  241 :  820. 
Lott  V.  Bewer,  64  Ala.  287 :  14. 
V.  Kaiser,  61  Tex.  671 :  391. 
Louden  v.   Yeager  (Ky.),    14  S.    W. 

966:  672. 
Louisiana  v.  New  Orleans,  102  U.  S. 

203 :  41,  679. 
Love  V.  Blair,  72  Ind.  281 :  873,  906. 
V.  Breedlove,  75  Tex.  649 :  394. 
V.  Moynehan,  16  111.  277 :  689. 
Lovejoy  v.  Albee,  33  Me.  414 :  893. 
Lovell  V.  Doe,  44  Minn.  144 :  720. 
Lover  v.  Bessenger,  9  Bax.  393 :  546. 
Low  V.  Anderson,  41  la.   476:    390, 
404. 
V.  Hutchings,   41   Cal.   634 :  948. 
V.  Tandy,  70  Tex.  745 :  247. 
Lowdermilk  v.  Corpening,  92  N.   C. 

333 :  20,  227,  489,  678. 
Lowe  V.  Brooks,  23  Ga.  325 :  143. 

V.  Stringham,  14  Wis.  222 :    63, 

775. 
V.  Webb,  85  Ga.  731 :  649. 
Lowell  V.  Lowell,  55  Cal.  316 :  70. 

V.  Shannon,  60  la.  713 :  122,  156, 
167,  739. 
Lowry  v.  Fisher,  2  Bush,  70 :  346. 
V.  Herbert,  25  Miss.  101 :  789. 
V.  McAllister,  86  Ind.  543 :  878. 
V.  Parker,  83  Ga.  341:551. 
Loyd  V.  Loyd,  82  Ky.  521 :  645. 
Lozo  V.  Sutherland,  38  Mich.  168 :  121, 

136,  138,  141,  700. 
Lubbock  V.  McMann,  82  Cal.  228 :  6, 
147,  163,   164,  105,  170,    177, 
182,  274,  293,  561. 
Lucas  V.  Pickel,  20  la.  490 :  294,  388. 
Luf kin  V.  Galveston,  58  Tex.  545 :  329. 
Luhn  V.  Stone.  65  Tex.  439 :  194 
Lumber  Co.   v.   Gottschalk,   81  CaL 
641 :  366. 


Lundberg  v.  Sharvey,  46  Minn.  350 : 

156,  213. 
Lunt  v.  Neeley.  67  la.  98 :  373,  415, 

420,  432,  562. 
Lusk  V.  Hopper,  3  Bush,  185 :  552. 
Lute  V.  Reilly,  65  N.  C.  20 :  730. 
Luther  v.  Drake,  21  la.  92:  394.  422. 
Lyle  V.  Palmer,  42  Mich.  314:  116. 
Lyman  v.  Byam,  38  Pa.  St  475 :  788, 
789. 
V.  Fiske,  17  Pick.  231 :  570. 
Lynch  v.  Dalzell,  4  Brown  (Par.  Cas.), 
431 :  609. 
V.  Lynch,  18  Neb.  586,  589 :  136. 
V.  Pace,  40  Ga.  173 :  83. 
Lynd  v.   Picket,   7   Minn.    128:  776, 

816. 
Lyon  V.  Ozee,  66  Tex.  95 :  362. 
V.  Sanford,  5  Ct.  544 :  304. 
V.  Welsh.  20  la.  578 :  686. 
Lyons  v.  Conner,  57  Ala.  181 :  428. 
Lytle  v.  Lytle,  94  N.  C.  683:  299. 

M. 

Mabry  v.  Harrison,  64  Tex.  286 :  804, 
399,  640. 
V.  Johnson,  85  Ga.  340 :  703. 
v.  Ward,  50  Tex.  411  :  252. 
Mace  V.  Heath  (Neb.),  51  N.  W.  317: 
831,  883. 
V.  Merrill,  56  Cal.  554 :  942. 
Machemer's  Estate,  140  Pa.  St.  544 : 

637.  790. 
Mack  V.  Adler,  22  Fed.  570 :  351. 

V.  Heiss,  90  Mo.  578 :  546,  707. 
Macke  v.  Byrd  (Mo.),  19  S.  W.  70 : 

705. 
Mackreth  v.  Symmons,  15  Ves.  348: 

552. 
Macmanus  v.  Campbell,  37  Tex.  267 : 

174,  223. 
Madden  v.  Jones,  75  Ga.  680 :  632. 
V.  Madden  (Tex.),  15  S.  W.  480: 
381. 
Madigan  v.  Walsh,  22  Wis.  501 :   691, 
Magee  v.  Magee,  51  111.  500 :  336,  337, 
345,  347. 
V.  Rice,  37  Tex.  483  :  603. 


TABLE    OF   CASES. 


Ixi 


Mahaffy  v.  Mahaffy,  63  la.  55 :  2G9. 

591,  622. 
Mahan  v.  Scruggs,  29  Mo.  283 :  774, 

780. 
Mahon  v.  Cooley,  36  la.  479 :  353. 
Main  v.  Bell,  27  Wis.  519 :  858. 
Mallon  V.  Gates,   26  La,    Ann.   610: 

687. 
Mallory  v.  Berry,  16  Kas.  293 :  810. 
V.  Norton,  21  Barb.  424  :  833,  864. 
Malone  v.    Kaufman,   38  Tex.   454: 

339,  346. 
Maloney  v.  Hefer,  75  Cal.  424 :  147, 

164,   170,  177,  183,    186,  235, 

293,  762. 
Malony  v.  Horan,   12  Abb.  Pr.  289 : 

395. 
Malvin  v.  Christoph,  54  la.  562 :  877. 
Manchester  v.  Burns,  45  N.  H.  488 : 

441,  919. 
Mandlove  v.  Burton,  1  Ind.  39 :  874, 

919. 
Mann  v.  Kelsey.  71   Tex.   609:  317, 

443. 
V.  Mann's  Estate,  53  Vt  48 :  545. 
V.  Rogers,  35  Cal.  316 :  112,  170, 

177,  184,  211,  212,  235. 
V.  Welton,  21  Neb.  541 :  786,  789, 

863,  884. 
Mannan  v.  Mei-ritt,  11   Allen  (Mass.), 

582:  792. 
Manning  v.  Dove,  10  Rich.  403 :  647. 

V.  Manning,  79  N.  C.  293 :  46. 
Manseau  v.  Mueller,  45  Wis.  436 :  200. 
Mantooth  v.  Burke,  35  Ark.  540,  544 : 

952,  953. 
Mapp  V.  Long,  62  Ga.  568 :  853. 
Mar  bury  v.  Ruiz,  58  Cal.  11 :  486. 
March  v.  England,  65  Ala.  275 :  430, 

579. 
Mark  v.  The  State,  15   Ind.  98 :  847, 

853,  862. 
Markham  v.  Hicks,  90  N.  C.  204 :  299, 

480. 
Markoe  v  Wakeman.  107  111.  251 :  135. 
Marks  v.  Marsh,  9  Cal.  96 :  686,  690. 
Marquez   v.  Frisbie,  101   U.   S.  473 : 

937,  941. 
Marr  v.  Lewis,  31  Ark.  203 :  410. 


Marrion,  Matter  of,  1  Copp,  363 :  928- 
Marsh  v.  Holly,  42  Ct.  453 :  135. 

V.  Lazenby,  41   Ga.    153 :  59,  60," 

606. 
V.  Nelson,  101  Pa.  St.  51 :  38. 
Marshall  v.  Bacheldor  (Kas.),  28  P. 
168 :  364,  787. 
V.  Cook,  46  Ga.  301 :  241. 
V.  Cowles,  48  Ark.  362 :  947. 
V.  Sears,  79  Va.  49 :  55,  531,  533, 
535. 
Martel  v.  Somers,  26  Tex.  554 :  514, 

530. 
Martin  v.  Aultman  (Wis.),  49  N.  W. 
749 :  221,  666. 
V.  Bond,  14  Colo.  466,  471 :  8ia 
V.  Hargadine,  46  111.  322 :  421. 
V.  Hughes,  67  N.  C.  293:  228. 
V.  Kirkpatrick,  30  La.  Ann.  1214 : 

295. 
V.  Knapp,  57  la.  336 :  156. 
V.  Lile,  63  Ala.  406 :  555,  575. 
V.  Martin,  7  Md.  376 :  242,  374. 
V.  McNeely,  101  N.  C.  634 :  354 
V.  O'Brien,  34  Miss.  21  :  32. 
V.  Piatt,  64  Mich.  629 :  420. 
V.  Sprague.  29  Minn.  53 :  137. 
V.  Walker,  43  La.  Ann.  1019 :  703. 
Martindale   v.   Smith,   31  Kas.  273: 

449,  462. 
Martou  v.  Ragan,  5  Bush  (Ky.),  334 : 

516. 
Mash  V.  Russell,  1  Lea,  543 :  268,  58a 
Mason  v.  O'Brien,  42  Miss.  420,  427 : 

788. 
Massey  v.  Womble  (Miss.),  11  So.  188 : 

576. 
Massie  v.  Enyart,  33  Ark.  688 :   323, 

518,  916. 

Masten  v.  Amerman,  51   Hun,  244 : 

836. 
Masters  v.  Madison  Ins.  Co.,  11  Barb. 

624:  950. 
Matson   v.   Melchor,   42    Mich.    477: 

519,  535. 

Matthews  v.  Redwine,  25  Miss.  99: 

808. 
Mattox  V.  Hjghtshue,  39  Ind.  95 :  45, 

135. 


Ixii 


TABLE   OF   OASES. 


Mauldin  v.  Cox,  67  Cal.  387:  121. 
Mawson  v.  Mavvson,  50  Cal.  539 :  599, 

637,  708. 
Maxon  v.  Peirott,  17  Mich.  332 :  798, 

799. 
V.  Scott,  55  N.  Y.  247  :  530. 
Maxwell  V.   Reed,  7   Wis.   582 :   541, 

781. 
May  V.  Slade,  24  Tex.  205 :  649. 
Mayfield  v.  Maasden,  59  la.  517 :  1,79. 
Mayman  v.  Reviere,  47  Tex.  35?  :  403. 
Mayor  v.  Hartridge,  8  Ga.  23 :  38. 
Mayors  v.  Mayors,  58  Miss.  806 :   568. 
Maysville  Turnpike  Co,  v.  How,  14  B. 

Mon.  342 :  768. 
McAbe  V.  Thompson,  27  Minn.  134: 

776,  812,  816,  866. 
McAbee  v.  Parker,  83  Ala.  169 :  674. 
McAfee  v.  Bettis,  72  N.   C.  28 :  618, 

646,  647. 
V.  K}'.  University,  7  Bush,  135 : 

570. 

McAlister  v.  Farley,  39  Tex.  561 :  640. 

V.  White  (Vt.),  13  Atlan.  602 :  651. 

McAlpin  V.  Burnett,  19  Tex.  497 :  729. 

McAnnich  v.  Miss.  etc.  R.  Co.,  20  la. 

338:  27. 
McArthur  v.  Martin,    23  Minn.  74: 

410,  412,  725. 
McAuley's  Appeal,  35   Pa.   St.  209: 

'873. 
McAuley  v.  Morris,  101  N.  C.  369: 

676,  855. 
McBrayer   v.   Dillard,   49   Ala.    174: 

316. 
McBride  V.  Reitz,  19  Kas.  123:  827. 
McBrown  v.  Morris,  59  Cal.  64 :  930. 
McBryde  v.  Wilkinson,  29  Ala.  662 : 

427. 
McCabe  v.  Berge,  89  Ind.  225:  915. 
V.  Mazzuchelli,  13  Wis.  534:  118, 

375,  378. 
McCaleb  v.  Burnett,  55  Miss.  83 :  143. 
McCall  V.  McCall,   15  La.  Ann.  527 : 

655. 
V.  Rogers,  77  Ala.  349 :  339. 
McCanless  v.  Flinchuni,  98  N.  C.  858 : 

678. 
McCaun  v.  Hill,  85  Ky.  574 :  667. 


McCarthy's  Appeal,  68  Pa,  St.  217 : 

316. 
McCarthy  v.  Gomez  (Tex.),  19  S.  W. 

999:  697. 
V.  Van  Der  Mey,  42  Minn.  189 : 

263,  492. 
McCarty  v.  Steamer  New  Bedford,  4 

Fed.  818:  82. 
McCauley  v.  Brooks,  16  Cal.  11:  76a 
McCauley's  Estate,  50  Cal.  544:   15, 

294,  627. 
McClary  v.   Bixby,  36  Vt.   254 :   138, 

187,  215,  401. 
McCleary  v.  Ellis,  54  la.  311 :  727. 
McCloy  V.  Arnett,  47  Ark.  453 :  150, 

298,  492,  706. 
McClure  v.  Braniff,  75  la.  38 :  10, 117, 

118,  184,  232,  323,  404. 
McClurg  V.  Turner,  74  Mo.  45 :  621. 
McClurken  v.  McClurken,  46  111.  327 

112,  265. 
McCluskey  v.    McNeely,  8  111.  578 

777,  847. 
McClusky  V.  Cromwell,  11  N.  Y.  601 

24,  47. 
McComb  V.  Thompson,  42  O.  St  139 

419. 
McConnaughy  v.  Baxter,  55  Ala.  379 

564,  579. 
McConnell  v.  Beattie,  34  Ark.    113 

723. 
McCord  V.  Moore,  5  Heisk.  734 :  418, 

535,  918. 
McCormack   v.   Kimmel,  4    Bradw. 

121:  586. 
McCormick  v.  Bishop,  28  la.    233 

151,  179. 
V.  Neal,  53  Tex.  15 :  399. 
V.  Wilcox,  25  111.  247 :  294. 
McCoy  V.  Brennan,  61  Mich.  362 :  782, 

816,  863,  905,  909. 
V.  Cornell,  40  la.  457 :  827. 
V.  Bail,  6  Bax.  137 :  807,  565,  875. 
V.  Grandy,  3  O.  St.  463 :  366. 
V.  McCoy,  26  La.  Ann.  686 :  655. 
V.  Quick,  30  Wis.  521 :  691. 
McCracken  v.   Adler.  98  N.  C.  400 : 

158,  674,  679,  952. 
V.  Harris,  54  Cal.  81 :  306,  744. 


TABLE    OF    CASES. 


Ixiii 


McCrackin   v.   Weitzell,  70   la.  723 : 
756. 
V.  Wright,  14  Johns.  193 :  632. 
McCrary  v.  Chase,  71  Ala.  540:  19, 

560,  827,  871. 
McCreary's  Appeal,  74  Pa.  St.  194 : 

783. 
McCreery  v.   Fortson,   35  Tex,  641: 
704. 
V.  Schaflfer,  26  Neb.  173 :  412. 
McCrosky  v.  Walker  (Ark.),  18  S.  W. 

169:  149. 
McCrummen  v,  Campbell,  82  Ala,  566 : 

556. 
McCuan   v.   Turrentine,  48  Ala,  70: 

615, 
McCue  V.  Smith,  9  Minn.  237  :  940. 
V.  Tunstead,  65  Cal.  506 :  807, 
McCulloch    V.   Maryland,  4  Wheat. 

316:  13. 
McDaniel   v.  Mace,  47  la,  519:  155, 
225. 
V.  Westberry,  74  Ga.  380 :  333, 
McDannell  v.  Ragsdale,  71  Tex.  23 :  6, 

181,  562,  584. 
McDermott  v.  Kernan,  72  Wis.  268 : 

573. 
McDonald  v.  Badger,  23  Cal.  393 :  211, 
671,  686. 
V.  Berry,  90  Ala.  464 :  628,  632, 
V.  Campbell,  57  Tex,  614,  617-8: 

245,  252.  801, 
V.Clark  (Tex.),   19  S.    W,  1023: 

741. 
V.  Crandall,  43  111.  231 :  266,  387, 

401,  486,  582. 
V.  Edmonds,  44  Cal.  328 :  632. 
V.  Logan   Co.   (Ark.),   18    S.   W. 

1047:  587. 
V.  McDonald,  76    la    137 :    464, 
466,  620. 
McDougal  V.  Bradford,  80  Tex.  558 : 

596. 
McDougall  V.  Meginniss,  21  Fla.  362 : 

186. 
McDowell  V.  Steele,  87  Ala.  493 :  902, 

920. 
McElroy  v.  McGriffin,  68  Tex.  208: 
360. 


McFarland  v.  Fish,  84  W.  Va.  548: 

840. 
V.  Goodman,    6    Biss.    Ill :    516, 

522,  535. 
V.  Washington    (Ky.),    14  S.  W. 

354 :  562,  585. 
McGee  v.   McGee,  91   111.  548:   582, 

613. 
McGivney  v.   Childs,   41   Hun,  607: 

874 
McGowan  v.  Baldwin,  46  Minn.  477  : 

465. 
McGrath  v.  Berry,  13  Bush,  391 :  548, 

551. 
V.  Sinclair,  55  Miss.  89 :  138,  141, 

771. 
McGuire  v.  Van  Pelt,  55  Ala.  344: 

138,  393,  471,  579,  665. 
McHendiy  v.  Reilly,  13  Cal.  76 :  355. 
McHugh  V.  Curtis,  48  Mich.  262 :  775, 

802,  877,  901. 
V.  Smiley  17  Neb.  620 :  9, 19,  169, 

296,  384,  396,  398,  561. 
Mclnroy    v.    Dyer,   47   Pa.    St.    118: 

863. 
Mclutire  v.  Plaisted,  68  Me,  363 :  609. 
Mclnturf  v.  WoodruflF,  9  Lea,  671: 

568. 
Mclntyre  v.  Roeschlaub,  37  Fed.  556 : 

944. 
McKee  v.  Wilcox,  11  Mich.  358:  118, 

119,  352,  375,  378,  472,  688. 
McKeithan  v.  Terry,  64  N.  C,  25 :  41, 

303, 
McKenzie  v.  Murphy,  24  Ark,   157: 

37,  62,  96,  97,  150,  195,  775. 
McKinney   v.    Hotel  Co.,   12  Heisk. 

104 :  27, 
V.  Reader,  6  Watts  (Pa.),  34:  507, 

542,  548. 
McKinnie  v.  Shaffer,  74  Cal,  614 :  599, 
McKinzie  v,  Perrill,  15  Ohio  St,  168 : 

169, 
McLane  v.  Bovee,  35  Wis,  28 :  940, 
V,  Johnson,  43  Vt,  49 :  424. 
V,  Paschal,  74  Tex,  20:  224,  227, 

229,  250,  403. 
McLaren  v.   Anderson  (Ala.),   8  Sa 

188:  10,323,  326,  673,  914. 


Ixiv 


TAULE    OF   CASES. 


McLaughlin  v.  Bank,   7  How.  228: 

346. 
V.  Godwin,  23  Ala.  846 :  696. 
V.  Hart,  46   CaL  688 :    410,   412, 

725,  875. 
V.  United  States,  107  U.  S.  526 : 

930. 
McLaurie  v.  Thomas,  39  111.  291 :  349. 
McLaws  V.  Moore,  83  Ga.   177 :  553, 

554. 
McLean  v.  Ellis,  79  Tex.  398 :  27,  63. 
McLellan  v.  Weston,  59  Ga.  883 :  441. 
McLeran  v.  Benton,  43  Cal.  467 :  384. 
McMahill  v.  McMahill,   105  111.  601: 

582,  613. 
McMahon  v.  Speilman,   15  Neb.  653 : 

298. 
McManany  v.  Sheridan  (Wis.),  51  N. 

W.  1011 :  702. 
McManus'  Estate  (Cal),  25  P.  413 :  800. 
McManus  v.  Campbell,  37  Tex.  269 : 

118,  905,  909. 
McMastei-   v.  Arthur,  33  S.    C.  512: 

649,  652. 
McMasters  v.  Alsop,  85  III  157 :  782, 

865. 
McMillan  v.  Parker  (N.  C),  13  S.  E. 

764 :  144,  367,  952. 
V.  Warnei-,  38  Tex.  410 :  558,  562, 

565. 
McMurray  v.  Shuck,  6  Bush,  111 :  60. 
McNair  v.  Reisher,  8  Pa.  Co.  Ct.  494 : 

775. 
McNally  v.  Mulherin,  79  Ga.  614 :  130, 

917. 
McPhee  v.  O'Rourke,  10  Colo.  301 : 

64,  509. 
McQuade  v.  Whaley,  31  Cal.  533 :  170, 

486. 
McReynolds  v.  Counts,  9  Gratt.  242 : 

621. 
McRoberts  v.  Copeland,  85Tenn.  211 : 

139,  607. 
McSkimin  v.  Knowlton,  14  N.  Y.  S. 

283:  827. 
McTaggert  v.  Smith,  14  Bush,  414: 

6,  491,  548,  551. 
McWilliams  v.  Anderson,  68  Ga.  772 : 


Mc Williams   v.   Bones,   84  Ga.  203: 

356,  859. 
V.  McWilliams,  68  Ga.  459 :  123. 
Meacham  v.  Edmonson,  54  Wis.  746: 

96,  97. 
Mead  v.  Larkin,  66  Ala.  87 :  674. 
Meade  v.  Finley,  47  111.  406 :  138. 
Meader  v.  Place,  43  N.  H.  308 :  66, 93, 

261,  581. 
Mebane  v.  Layton,  89  N.  C.  396 :  158, 

300,  480,  678. 
Mechanics'  Ass'n  v.  King,  83  Cal.  440 : 

380,  383. 
Medlenka  v.  Downing,  59  Tex.   39: 

183,  191,  223,  251. 
Meech  v.  Meech,  37  Vt.  414,  418 :  457, 

466. 
Megehe  v.  Draper,  21  Mo.  510 :  853. 
Meguiar  v.  Burr,  81  Ky.  32 :  126. 
Meigs  V.  Dibble,  73  Mich.  101,  113: 

128,  505. 
Mellichamp  v.  Mellichamp,  28  S.  C. 

125:  136.- 
Mellison  v.  Allen,  30  Kas.  382 :  947. 
Melton  V.  Andrews,  45  Ala.  454:  223, 

729. 
Memphis  v.  United  States,  97   U.  S. 

295:  678. 
Menzie  v.  Kelley,  8  111.  App.  259 :  776, 

848,  853,  877,  901. 
Mercer  v.  Chace,  11  Allen,  194:  211, 

232,  260,  615,  616,  695,  702. 
Meredith  v.  Holmes,  68  Ala.  190 :  322, 

323,  914. 
Merrifield  v.  Merrifield,  82  Ky.  526 : 

491. 
Merrill   v.  Berkshire,    11   Pick.  269: 

135. 
Merriman  v,  Lacefield,  4  Heisk.  209 : 

20,  615,  787. 
Merritt  v.  Merritt,    97  III   249:  495, 

618,  630. 
Methery  v.  Walker,  17  Tex.  593:  185. 
Metz  V.  Cunningham,  6  Neb.  92:  863. 
Meux  V.  Anthony,  11  Ark.  411 :  520. 
Meyer  V.  Berlandi,  39  Minn.  438:  295, 

365. 
V.  Meyer,   23    la.    359 :  590,   592, 

620,  622,  788,  801. 


TABLE   OF   CASES. 


Ixv 


Meyer  v.  Nickerson,  101  Mo.  184 :  669, 
671,  672. 
V.  Pfeiffer,  50  111.  485 :  700. 
Michaelis  v.  Michaelis,  43  Minu.  123 : 

927. 
Michare  v.  Eckman  (Fla.),  7  So.  365 : 

862. 
Mickles  v.  Tousley,  1  Cow.  114 :  771. 
Middlebrooks  v.  Warren,  59  Ga.  230 : 

232.  338. 
Milburn  Wagon  Co.  v.  Kennedy,  75 

Tex.  212:  154. 
Mildmay  v.  Folghara,  3  Ves.  Jr.  471 : 

609. 
Miles  V.  Fisher,  10  Ohio,  1 :  143. 
V.  Hall,  12  Bush,  105:  167. 
V.  Miles,  46  N.  H.  261 :  598,  624, 

694,  695. 
V.  State,  73  Md.  398 :  771,  778. 
Millard  v.  Lawrence,  16  How.  (U.  S.) 

251:  24. 
Miller  v.  Brown,  11  Lea,  155  :  368. 
V.  Brownson,  50  Tex.  592 :  649. 
V.  Finegan,  26  Fla.  29 :  461. 
V.  Getz,  135  Pa.  St.  558 :  872. 
V.  Little,  47  Cal.  348 :  926,  933. 
V.  Marckle,  27  111.  405 :  422,  645. 
V.  Marx,  55  Ala.  322 :    393,  428, 

579,  588. 
V.  McCarty,  47  Minn.  321 :  875. 
V.  Menke,  56  Tex.   562 :  185,  243, 

250,  647,  801. 
V.  Miller,  89  N.  C.  402 :  300,  678. 
V.  Ruble,  107  Pa.  St.  395 :  45. 
V.  Sclmebly,   103    Mo.  368 :    647, 

705. 
V.  Shaw,  103  111.  277:  555. 
V.  Sherry,  2  Wall.  237,  248 :  666, 

730,  747. 

V.  Weeks,  46  Kas.  307 :  800. 

V.  Wolbert,  71  la.  539 :  424. 

V.  Yturria,  69  Tex.  549 :  432. 

Miller's  Appeal.  16  Pa.  St.  300 :  231, 

668,  778,  785. 
Miller's  Ex'r  v.  Finnegan,  26  Fla.  29 : 

629. 
Millington  v.  Fox,   13  N.   Y.  S.  334 : 

837. 
Mills  V.  Brown,  69  Tex.  244 :  181. 


Mills  V.  Grant,  36  Vt.  271 :  31,  215. 
V.  Grant's  Estate,  36  Vt  269 :  187. 
V.  Hobbs,  76  Mich.  122,  126:  199. 
V.  Spalding,  50   Me.  57:  11,    170, 

346. 
V.  Van  Boskirk,  32  Tex.  361 :  563, 
567. 
Milne  v.  Schmidt,  12  La.  Ann.  523: 

41. 
Milwaukee  Ins.  Co.  v.  Ketterlin,  24 

III.  App.  188 :  123. 
Mims  V.  Ross,  42  Ga.  121 :  294,  455.      ' 
Mineral  Point  R.  Co.  v.  Barron,  83  IlL 

365 :  826,  901. 
Minet  v.  Leman,  20  Beav.  269 :  34. 
Minnesota  v.  Bachelder,  1  Wall.  109 : 

941. 
Minter  v.  Crommelin,    18  How.  88: 

930. 
Mintzer  v.  St  Paul  Trust  Co.,  74  Tex. 

20 :  215,  543. 
Missouri  Life  Ins.  Co.  v.  Randall,  71 

Ala.  220:  339. 
Missouri  Pac.  R.  Co.  v.  Whipsker,  77 

Tex.  17 :  899. 
Missouri  R    Co.  v.  Maltby,  34    Kaa 

125 :  889,  900. 
Mitcham  v.  Moore,  73  Ala,  54 :  790. 
Mitchell  V.  Bartlett,  51  N.  Y.  453 :  380, 
425. 
V.  Coats,  47  Pa.  St  202 :  540,  817, 

872. 
V.  Hay,  37  Ga.  581 :  727. 
V.  Joyce,  69  la.  121 :  810. 
V.  Milhoan,  11  Kas.  617:  194,  400, 

444,  445. 
V.  Prater,  78  Ga.  767 :  442. 
V.  Rockland,  45  Me.  496 :  38. 
V.  Sawyer,  115  111.  650:  730. 
V.  Skinner,  17  Kas.  565 :  515. 
V.  Warner,  5  Ct  497 :  945. 
Mitchelson  v.  Smith.  28  Neb.  586 :  30, 

382. 
Mix  V.  King,  66  111.  145  :  689,  748. 
Mobley  v.  Andrews,  55  Ark.  222 :  697. 
V.   Griffin,    104   N.    C.    112:    158, 

367,  674,  952. 
V.  Mobley,  73    la.  654 :  464,  592, 
620. 


Ixvi 


TAIiLE    OF   OASES. 


Mock  V.  Pleasants,  34  Art.  63:  619. 

V.  Watson,  41  la.  244 :  623. 
Moffat  V.  United  States,   112  U.   S. 

24:  931. 
Moffitt  V.  Adams,  CO  la.  44 :  866. 
Mohan  v.  Smith,  30  Minn.  2o9 :  676. 
Mohawk  E.  Co.  v.  Artcher,  6  Paige, 

83:  857. 
Moline  Plow  Co.  v,  Vanderhoof,  36 

111.  App.  26  :  568., 
Moninger  v.  Ramsey,  48  la.  368 :  590, 

593. 
Monk  V.  Capen,   5  Allen,    146:  260, 

615,  616. 
Monniea  v.  German  Ins.  Co.,  12  111. 

App.  240:  836. 
Monroe  v.  May,  9  Kas.  466 :  181,  194, 

200,  201,  386,  514,  515,  530. 
Monson    v.    Chester,    22    Pick.    385 : 

38. 
Montague  v,  Richardson,  24  Ct.  338 : 
31,  818. 
V.  Selb,  106  111.  49 :  624. 
Montgomery  v.  Casson,  16  Cal.  189 : 
768. 
V.  Robinson,  76  Cal.  229 :  380. 
V.  Tutt,  11  Cal.  190:  717. 
Montoursville  Overseers  v.  Fairfield, 

112  Pa.  St.  99:  45. 
Mooers  v.    Dixon,   35  111.    208:    495, 

689,  748. 
Moog  V.  Strang,  69  Ala.  98 :  428. 
Mooney  v.  Moriarity,  36  111.  App.  175  : 
19,  217,  673,  748. 
V.  Railroad  Co.,  60  la.  346:  896. 
Moore  v.  Boozier,  42  Ark.  385 :  766, 
878. 
V.  Dunning,  29  111.  130 :  419,  580. 
V.  Flynn,  135  111.  74:  574. 
V.  Frost,  63  Ga.  296:  119,  525. 
V.  Granger,  30  Ark.  574 :  297. 
V.  Hageman,  27  Hun,  68 :  75. 
V.  Heaney,  14  Md.  563 :  900. 
V.  Ivers,  83  Mo.  29 :  121,  603. 
V.  Litchford.  35  Tex.  185:  21. 
V.  Mclutosh,  6  Kas.  39 :  953. 
V.  Morrow,  28  Cal.  551 :  709. 
V.  O'Barr.  87  Ga.  205 :  739,  741. 
V.  Owsley,  37  Tex.  603 :  647. 


Moore  v.  Parker,  13  S.  C.  490 :  57,  80, 
641,  657. 
V.  Reaves,  15  Kas.  150:  118,  149, 

2G2,  375,  378,  404,  51.5. 
V.  Robhins,  96  U.  S.  530 :  931,  937, 

941. 
V.  Titman,  33   111.    360 :    44,  419, 

495,  730,  748. 
V.  Whitis,  30  Tex.  440  :  185. 
Moores  v.  Wills,   69  Tex.   109:   398, 

584. 
Mooring  v.  McBride,  62  Tex.  309 :  751. 
Moran  v.  Clark,  30  W.  Va.  358 :  10-3, 

541,  547.  550. 
Morehead  Bankmg  Co.  v.  Whitaker 

(N.  C),  14  S.  E.  924:  417. 
Moreland  v.   Barnhart.  44  Tex.  379 : 

185,  191.  196,  399. 
Morgan  v.  Bolles,  36  Ct.  175:  45. 
v.  Neville,  74  Pa.  St.  52 :  896. 
V.  Stearns,  41  Vt.  398:  119.  215. 
Moriarity  v.   Gait,  112   111.  373:  213, 

217,  265,  266,  409.  495,  730. 
Morrill  v.  Hopkins,  36  Tex.  686:  60, 
373. 
v.  Seymour,  3  Mich.  64 :  798,  812. 
Morris  v.  Balkham,  75  Tex.  Ill  :  751. 
V.  Geisecke,  60  Tex.  633 :  391. 
V.Sargent,   18  la   90:  115,  385, 

423,  562. 
V.  Shafer,   93  Pa.   St.  489 :    778, 

882. 
V.  Tennent,  56  Ga.  577 :  443,  443, 

91.5. 
V.  Ward,  5  Kan.   239 :    314,  378, 
384,  515,  630. 
Morrison  v.   Abbott,  27  Minn.  116: 
529. 
V.  McDaniel,  30  Miss.  217:  225. 
V.  Watson,    101   N.   C.  340 :  677, 

678. 
V.  Wilson,  30  Cal.  344 :  632. 
Morrissey  v.  Donohue,  32  Kas.  646: 
226. 
V.  Feeley,  36  111.  App.  556 :  849. 
V.  Stephenson.  86   111.    344 :   624, 
751. 
Morse  v.  Goold,  11  N.  Y.  2$1 :  41,  280, 
768. 


TABLE    OF   CASES. 


Ixvii 


Morse  v.  Keyes,  6  How.  Pr.  18 :  805. 

V.  Towns,  45  N.  H.  185 :  441. 
Mortgage  Co.  v.  Norton,  71  Tex.  683 : 

398,  526. 
Morton   v.  Blankenship,  5   Mo.  346: 

940. 
V.  Carroll,  68  Miss.  699 :  653. 
V.  McCanless,  68  Miss.  810 :  143, 

653. 
V.  Nebraska,  31  Wall.  660,  674 : 

930. 
Mosely  v.   Anderson,    40    Miss.   54: 

116,  147,  186,  523,  864,  918. 
V.  Bevins  (Ky.),  15  S.  W.  527 :  366. 
Moses  V.  McClain,  82  Ala  370 :  393, 

416. 
Moshier  v.  Meek,  80  111.  79 :  347. 
Moss  V.  Warner,  10  Cal.  206 :  31,  559, 

563,  686,  690. 
Motes  V.  Carter,   73  Ala.    553:   428, 

576,  579. 
Moughon  V.  Masterson,  59  Ga.  836 : 

488. 
Moultrie  v.  Elrod,  23  Ga.  393 :  785. 
Mouriquand  v.   Hart,   22  Kas.  594: 

152,  181. 
Moxley  v.  Ragan,  10  Bush,  158 :  539, 

541,  869,  873. 
Moyer  v.  Drummond  (S.  C),  10  S.  E. 

952:  78. 
V.  McCullough,  1  lud.  339 :  940. 
Mudge  V.  Lanning,  68  la,  641 :  836. 
Mueller  v.  Richardson  (Tex.  Sup.),  18 

a  W.  693  :  794. 
Muhr  V.  Pinover,  67   Md.  488:  873, 

874,  875. 
Muir  V.  Bozarth,  44  la.  499 :  130,  423, 

579. 
V.  Steinman,  52  Pa.  St  423 :  882. 
Mulherrin  v.  Hill,  5  Heisk.  58 :  346. 
Mullen  V.  Wine,  26  Fed.  206 :  936. 
MuUer  v.  Inderreiden,  79  lU.  382 :  516, 

535. 
V.  United  States,  118  U.  S.  271 : 

931. 
Mulliken  v.  Winter,  2  Duv.  256  :  836. 
Mumper  v.  Wilson,  72  la.   163 :  890. 
Munchus  V.  Harris,  69  Ala.  506 :  19, 

560. 


Mundell  v,  Hammond,  40  Vt  641 :  810. 
Munds  V.  Cassidey,  98  N.  C.  558:  560, 

774. 
Mundy  v.  Munroe,  1  Mich.  76:  677. 
Municipal  Society  v.  Kent,  4  L.  R,  9 

App.  Cas.  273 :  25,  33. 
Munro  v.  Jeter,  24  S.  C.  29 :   117,  124, 

652. 
Murchison  v.  Plyer,  87  N.  C.  79:  117, 

120,  189,  480,  489. 
Murdock  v.  Dalby,  13  Mo.  App.  47  :  7, 

58,  80,  116,  617,  878. 
Murphy  v.  Coffey,  33  Tex.  508 :  688. 
V.  Crouch,  24  Wis.  305 :  395,  478, 

516. 
V.  De  France,  105    Mo.  53:  647, 

694,  707,  713. 
V.  Hunt,  75  Ala,  438,  441 :  11,  19, 

164,  170,  564,  572,  579. 
V.  McNeil,  83  N.  C.  331 :  79,  337, 

480. 
V.  Rulh,  24  La.  Ann.  74 :  636. 
V.  Sherman,  25   Minn.  196 :   776, 
816,  817. 
Murray  v.  Rapley,  30  Ark.  568  :   305. 
V.  Sells,  53  Ga.  257:  131,  171,  398, 
443. 
Mut  Life  Ins.  Co.  v,  Newton  (N.  J.), 

15  Atl.  543  :  393. 
Myers'  Appeal,  78  Pa.  St.  453 :  733. 
Myers  V.  Convvaj%  90  Ala.   109:  930. 
V.  Croft,  13  Wall.  391 :  949,  953. 
V.  Evans,  81  Tex.  317 :  384,  393. 
V.  Ford,  22  Wis.  134 :   75,  82,  98, 

575. 
V.  Forsythe,  10  Bush,  394 :  788, 
V.  Ham,  20  S.  C.  522 :    157,   169, 

445,  652. 
V.  Mott,  29  Cal.  359 :  309. 
Mynatt  v.  Magill,  3  Lea,  72 :  885. 
Myrick  v.  Bill,  3  Dak.  284,  292:  112. 

Nance  v.  Hill,  36  S.  C.  227 :  136,  157. 
V.  Nance,  28  111.  App.  587 :   618, 

930. 
Nash   V.    Farrington,   4    Allen,    157 : 

305,  309,  536,  739,  817. 


Ixviii 


TABLE    OF   CASKS. 


Nash  V.   Norm  en  t,  5  Mo.  A  pp.  545 : 
923. 
V.  Young,  31  Miss.  134:  461,  467. 
Nashville   Bank   v.   Ragsdale,  Peck, 

296:  309. 
Naumburg  v.  Hyatt  24  Fed.  898,  905 : 

917,  918. 
Neal  V.  Brockhan,  87  Ga.  130 :  655. 
V.  Coe,  35  la.  407  :  185,  571. 
V.  Perkeisou,  61  Ga.  346 :  442. 
V.  Sawyer,  62  Ga.  352 :  60,  61,  65. 
V.  Seigel.  33  Ark.  63 :  525. 
Neely  v.  Henry,  63  Ala.  261 :  549, 875, 

885. 

Neff's  Appeal,  21  Pa.  St.  243 :  41,  788. 

Nelson  v.  Commercial  Bank,  80  Ga. 

328 :  96,  98. 

V.  McCrary,  60  Ala.  301 :  515. 

Neumaier  v.  Vincent,  41  Minn.  481 : 

294,  566. 
Nevin's  Appeal,  47  Pa.  St.  230 :   61. 
Newbold  v.  Smart,  67  Ala.  326 :  356. 
Newcomb    v.    Butterfield,   8   Johns. 

342:  8.59. 
Newell  V.  Hay  den,  8  la.  140:  896. 

V.  People,  7  N.  Y.  99 :  26. 
New  England,  etc.  Co.  v.  Merriam,  2 

Allen,  390 :  339. 
New  England  Co.  v.  Robson.  79  Ga. 

757:  526. 
Newhall  v.  Sanger,  92  U.  S.  761 :  940. 
Newkirk  v.  Marshall,  35  Kas.  77 :  953. 
Newland  v.  Holland,  45  Tex.  588:  67, 

96,  095. 
Newlin  v.  Osborne,  67  Am.  Dec.  269 : 

425. 
Newman  v.  Farquhar,  60  Tex.  640 : 
391,  750. 
V.  Franklin.  69  la.  244:  156,  558. 
V.  Home  Ins.  Co.,  20  Minn.  422 : 

609. 
V.  Waterman,  63  Wis.  616 :  478. 
V.  Willitts,  78  111.  397 :  730. 
New  Orleans  v.  Morris,  105  U.  S.  600 : 
515. 
V.  Paine,  49  Fed.  12 :  936. 
Newsom  v.  Carlton,  59  Ga.  516 :  98. 
Newton  v.  Calhoun,  68  Tex.  451 :  181, 
573, 579. 


Newton  v.  Howe,  29  Wis.  531 :  140, 

909. 

V.  Summey,  59  Ga.  397:  103. 

Neyland  v.  Neylaud,  70  Tex.  24:  597. 

Nichol  V.  County  of  Da%'idson,  8  Lea, 

389 :  157.  530,  607. 
Nicholas  v.  Purczell,  21  la.  265 :  590, 
592,  593,  598,   622,  626,   656, 
657. 
Nichols  V.  Claiborne,    39    Tex.  363: 
803. 
V.  Council,  51  Ark.  26 :  947. 
V.  Denny,  37  Miss.  59 :  143. 
V.  Dibrell,  61  Tex.  539:  709. 
V.  Goodheart,   5    111.   App.   574: 

879. 
V.  Knowles,  17  Fed.  494:  351. 
V.  Nicliols,  61  Vt.  426 :  423,  424, 

559,  625. 
V.  Overaker,  16  Kas.  54:  337,  878, 

404,  507. 
V.  Sennitt,  78  Ky.  630 :  667. 
V.  Shearon,  49  Ark.  75  :  298,  493, 

652,  706. 
V.  Spremont,  111  111.  631:  730. 
Nicholson  v.  Leavitt,  4  Sand.  252  :  524 
Niekols  v.  Winn,  17  Nev.   188 :    135, 

930,  933. 
Niehaus  v.  Faul,  43  O.  St.  63 :  230. 
Niles  V.  Harmon,  80  111.  396 :  403. 
Noble  V.  Hook,  24  Cal.  639 :  164,  170. 
Noel  V.  Ewiug,  9  Ind.  37 :  449. 
Nolan  V.  Reed,  38  Tex.  426 :  155,  188, 

224,  226. 
Noland  v.  AVickham,  9  Ala.  169 :  808. 
Norris  v.  Brunswick,  73  Mo.  257 :  910, 
912,  913. 
V.  Callahan,   59  Miss.    140 :   460, 

467. 
V.  Kidd,  28  Ark.  485 :   297,  517, 

532,  729,  734,  888. 
V.Morrison,  45  N.  H.  490:  117, 

119,  616. 
V.  Moulton,  34  N.    H.   392 :   189. 
215,  261,  616,  625,  668. 
North  V.   Shearn,  15  Tex.    175:   101, 

174,  400,  509,  730. 
North  Pres.  Church  v.  Jevne,  32  IlL 
214:  364. 


TABLE   OF   CASES. 


Ixix 


North  Star  Works  v.  Strong,  33  Minn. 

1 :  365,  675. 
Northup  V.  Cross  (N.    D.),  51   N.   W. 

718 :  776,  863. 
Norton  a-.  Bradham,  21  S.  C.  375,  381 : 

31,  40,  66. 
V.  Nichols,  35  Mich.  150 :  433. 
V.  Norton  (Ala.),  10  So.  436:  616, 

632,  705. 
Notley  V.  Buck.  8  B.  &  C.  164 :  24. 
Notte's  Appeal,  45  Pa.  St.  361 :  339. 
Nowland  v.  Lanagan,   45  Ark.  108: 

878. 
Nowling  V.  Mcintosh,  89  Ind.   593: 

10,  323,  759,  760,  916. 
Nugent  V.  Carruth,  32  La.  Ann.  444 : 

178,  555. 
Nussberger  v.  Conner,  73  Mo.   572 : 

817. 
Nuzman  v.  Schooley,  36  Kas.  177 :  809. 
Nycum  v.  McAllister,  33  la.  374 :  926, 

950. 
Nye  V.  Walliker,  46  la.  306:  156,  172, 

215,  590. 

o. 

Oakley  v.  Oakley,  30  Ala.  131  :  696. 

V.  Van  Noppen,  96  N.  C.  247 :  669. 
Oaks  T.  Heaton,  44  la.  116  :  933,  947. 
Oatman  v.  Bond,  15  Wis.  28 :  677. 
O'Brien  v.  Hilburn,  9  Tex.  297 :  688. 

V.  Kreng,  36  Minn.  136:  137. 

V.  Perry,  28  Mo.  500  :  940. 

V.  Young,  15  la  5 :  422. 
O'Connor  v.  Boylan,  49  Mich.  210: 
525. 

V.  Ward,  60  Miss.  1037 :  514. 
O'Docherty  v.  McGloin,  25  Tex.  72 : 

90,  459,  621,  652. 
O'Donnell  v.  Segar,  25  Mich.  367,  376 : 

129,  509,  802,  812,  814,  901. 
Officer  V.  Evans,  48  la.  557 :  515.  530, 
Ogden  V.  GHdden,  9  Wis.  46 :  403. 

V.  Strong,  2  Paine,  584 :  25. 
O'Gorman  v.  Fink,  57  Wis.  649 :  908. 

V.  Madden  (Ky.),  5  S.  W.   756 : 
286. 
Oliphant  v.  Hartley,  32  Ark.  465 :  5ia 


Oliver  v.  Snowden,  18  Fla.  823,  834 : 
186,  192. 
V.  White,  18  S.  C.  235:  910,  914. 
Ohnstead  v.  Mattison,  45  Mich.  617: 

874. 
Olson  V.  Orton,  28  Minn.  36 :  950. 
O'Neil  V.  Beck,  69  Ind.  239 :  867. 
V.  Craig,  56  Pa.  St.  161 :  542. 
Ontario  State  Bank  v.  Gerry,  91  Cal. 

94 :  167,  347,  377,  382. 
Oppenheimer  v.  Fritter,  79  Tex.  99 : 
253,  501,  573. 
V.  Howell,  76  Va.  218 :  55. 
Orman  v.  Orman,  26  la.  361 :  272,  562, 

591,  621,  699. 
Ornbaum  v.   His   Creditors,  61   CaL 

457:  185,  211,  232. 
Ordiorne's  Appeal,  54  Pa.  St    175: 

789. 
Orr  V.  Box,  22  Minn.  485 :  290,  765. 
V.  Doughty,  51  Ark.  527  :  157. 
V.  Shraft.  22  Mich.  260:  118,  121, 

185.  232,  398,  739. 
V.  Stewart,  67  Cal.  275 :  950. 
Ort  V.  Fowler,  31  Kas.  478:  426. 
Osborne  v.  Osborne,  76  Tex.  494  :  657, 
V.  Schutt,  67  Mo.  714:770. 
V.  Scoonmaker  (Kas.),  28  P.  710 : 
558. 
Osburn  v.  Sims,  62  Miss.  429 :  461. 
Osgood  V.  Maguire,  61  N.  Y.  529 :  893. 
O'Shaughnessy  v.  ]\Ioore,  73  Tex.  108 : 

398,  526. 
O'Shea  v.  Payne,  81  Mo.  516 :  288. 
Ott  v.  Sprague,  27  Kas.  620 :  262,  375, 

378.  386. 
Ottumwa  R  Co.  v.  Mc Williams,  71 
la.  164:  353. 
V.  Shannon,  91  Ind.  99 :  919. 
v.  Shannon,  75  Ind.  352  :  849,  862. 
Owen  V.  Gibson,  74  Ga.  465 :  553. 
Owens  v.  Hart,  62  la.  620 :    156,  727. 
V.  Hobble,   82  Ala.  466 :  920. 

P. 

Pace  V.  Vaughan,  1  GiL  30 :  859. 
Pac.  Min.  Co.  v.  Sparge,  16  Fed.  348 : 
953. 


Ixx 


TABLE   OF   OASES. 


Packet  Co.  v.  Keokuk,  95  U.  S.  80 : 

679. 
Paddock  v.  Balgord  (S.  D.),  48  N.  W. 
840:  850. 
V.  Lance,  94  Mo.  283 :  874. 
Paddon  v.  Bartlett,  3  Adolph.  &  E. 

884:  41. 
Padgett  V.  Norman,  44  Ark.  490 :  619. 
Page  V.  Ewbank,  18  la.  580 :  179,  282. 

V.  Page,  50  Ga.  597 :  64,  620. 
Paine  v.  Means,  65  la.  547 :  438. 
Palmer  v.  Blair,  25  la.  230 :  590. 
V.  Conly,  4  Denio,  374 :  41. 
V.  Havves  (Wis.),  50  N.   W.  341 : 

240,  510. 
V.  Simpson,  69  Ga.  793  :  333. 
V.  Smitli  (Ga.),  13  S.  E.  956 :  390. 
Pardee  v.  Liudley,  31  111.  174:  187, 
266,  405,  406,  644,  686,  730. 
V.  Markle,  111  Pa.  St  551 :  351. 
Pards  V.  Bittorf,  48  Mich.  275 :  46, 66, 

572,  581. 
Parham  v.  McMurray,  32  Ark.  261 : 

886. 
Paris,  etc.  Ry.  Co.  v.  Greiner  (Tex.), 

19  S.  W.  564 :  690,  699. 
Parisot  v.  Tucker,  65  Miss.  439 :  149, 

225,  462,  629. 
Parker  v.  Coop,  60  Tex.  Ill :  317. 
V.  Haley,  6o"la.  325:  803. 
V.  King,  16  Wis.  223 :  225,  226. 
V.  Rhodes,  79  Mo.  88 :  910,  913. 
V.  Savage,  6  Lea,  406 :  10,  325. 
Parkerson  v.  Wightman,  4  Strob.  (S. 

C.)363:  798. 
Parkinson  v.  State,  14  Md.  184 :  25. 
Parks  V.  Ct.  Ins.  Co.,  26  Mo.  App.  511 : 
385,  389. 
V.  Cushman,  9  Vt.  320 :  309. 
V.  Hartford  Ins.  Co.,  100  Mo.  373, 

380 :  360. 
V.  Reilly,  5  Allen,  77 :  258,  623. 
Parr  v.  Fumbanks,  11  Lea,  398:  410, 
583. 
V.  Newby,  73  Tex.  468 :  562. 
Parrott  V.  Kumpf,  102   111.   423:  213, 

345,  500. 
Parshley  v.  Green,  58  N.  H.  271 :  797. 
Parsons  v.  Cooley,  60  la  268 :  555. 


Parsons  v.  Livingston,  11  la.  104:  59, 

78,  80,  84,  85. 
Partee  v.  Stewart,  50  Miss.  721 :  64, 65, 

147,  384,  398,  739. 
Paschal  v.  Cushman,  26  Tex.  74:  224, 

730. 
Pasco  V.  Gamble,  15  Fla.  562 :  720. 
Paston  V.  Blanks,  77  Tex.  330 :  207. 
Pate  V.  Fertilizing   Co.,  54  Ga.  515 : 
435,  443. 
V.  Harper,  94  N.  C.  23 :  855. 
v.  Swan,  7  Blackf.  500 :  773,  862. 
Patrick  v.  Baxter,  42  Ark.   175 :  297, 
304,  671. 
V.  Ford,  5  Sneed,  530 :  325. 
V.  Rembert,  55  Miss.  87 :  333. 
Patten  v.  Smith,  4  Ct.  450-5 :  535,  802, 

873,  918. 
Patterson  v.  Kreig,  29   111.  514 :   422, 
486,  686. 
v.  Liuder,  U  la.  414:704. 
V.  Patterson,  49   Mich.  176 :   625, 

626. 
V.  Taylor,  15  Fla.  337 :  421,  873. 
Patton  V.  King.  26  Tex.  686 :  430. 
Patty  V.  Pease,  8  Paige  (N.  Y.),  277 : 

403. 
Paul  V.  Paul,  136  Mass.  286 :  67,  260, 
585,  616,  623. 
V.  Reed,  52  N.  H.  136 :  441. 
Paulson  V.  Nunan,  72  Cal.  243 :  807, 

879. 
Paup  V.  Sylvester,  22  la.  371 :  788. 
Payne  v.  Gibson,  5  Lea,  173:  840. 
Peabody  v.  Minot,  24  Pick.  329 :  135. 
Peake  v.  Cameron,  102  Mo.  568 :  285, 
309. 
V.  Thomas,  39  Mich.  585 :  420. 
Pearson  v.  Cox,  71  Tex.  246 :  359. 

V.  Minturn,  18  la.  36 :  285,  437. 
Pease  v.  Sherlock,  63  Vt.  692:  519, 

710. 
Peck  V.  Orrasby,  55  Hun,  265 :  213. 
V.  Webber,  7  How.  (Miss.)  658 : 
304. 
Peddle  v.  HoUinshead,  9  Ser.  &  R. 

277:  670. 
Peeler  v.  Peeler  (Miss.),  8  So.  392 :  602. 
Peevey  v.  Cabaniss,  70  Ala.  253 :  227. 


TABLE    OF    CASES. 


IXXL 


Pelan  v.  De  Bevard,  13  la.  53:  115. 
Pelham  v.  Wilson,  4  Ark.  289 :  953. 
Pelkey  v.  People,  8  111.  App.  83 :  853. 
Pell  V.  Cole,  2  Met.  (Ky.)  252 :  365. 
Pellat  V.  Decker,   72  Tex.  581 :  526, 

571. 
Pelzer  v.  Campbell  15  S.  C.  596:  124. 
Pender  v.  Lancaster,  14  S.  C.  25 :  56, 

79,  101,  283. 
Pendleton   v.   Hooper,    87  Ga.    108: 

111,  739. 
Pennel  v.  Weyant,  3  Harr.  501 :  393. 
Pennington  v.  Seal,  49  Miss.  538 :  11, 

379,  514. 
PentoD  V.  Diamond.  93  Ala.  610:  761, 

914. 
People  V.  Biggins,  96  111.  481 :  339. 
V.  Cameron,  7  III.  468 :  304. 
V.  Cooper,  83  111.  585 :  37. 
V.  Hoyni,  30  How.  (N.  Y.)  76 :  33, 

34. 
V.  Johnson,  4  111.  App.  346 :  886. 
V.  Lawrence,  36  Barb.  177 :  34. 
V.  McClay,  3  Neb.  7 :  63,  863. 
V.  N.  Y.  Ry.  Co.,  13  N.  Y.  78 :  34. 
V.  Palmer,  46  111.  403 :  777,  778, 

847. 
V.  Plumsted,  2  Mich.  465 :  373. 
V.  Rossiter,  4  Cow.  143 :  14. 
V.  Schoonmaker,  63  Barb.  44 :  34. 
V.  Shearer,  30  Cal.  648 :  953. 
V.  Stahl,  101  111.  346:  339,  357. 
V.  Stitt,  7  111.  App.  394 :  365,  551, 

586. 
V.  Supervisors,  13  Abb.  New  Cas. 

431 :  34,  41. 
V.  Wright,  70  111.  398 :  37. 
Pepper  v.  Smith,  54  Tex.  115 :  570. 
Perego  v.  Kottwitz,  54  Tex.  500 :  185. 
Perkins  v.  Bragg,  39  Ind.  507 :  305, 
309,  729,  882. 
V.  Pitts,  11  Mass.  125 :  135. 
V.  Quigley,  62  Mo.  498 :  149,  158, 

615. 
V.  Trinka,  30  Minn.  241 :  948. 
V.  Wisner,  9  la.  320 :  797,  811. 
Perrin  v.  Sargeant,  33  Vt.  84:  41,  638, 

651,  704. 
Perrine  v.  Perrine,  35  Ala.  644 :  696. 


Perry  v.  Ashby,  5  Neb.  291 :  983. 
V.  McLendon,  63  Ga.  604 :  554 
V.  O'Hanlon,  11  Mo.  585:  940. 
V.  Scott,  68  Tex.  308 :  560. 
Peterman's  Appeal,  76  Pa.   St  116: 

788,  856. 
Peterson  v.  Hornblower,  33  Cal.  275 : 
404. 
V.  Little,  74  la.  333 :  383. 
Petesch  v.  Hambach,  48  Wis.   451 : 

478. 
Petring  v.  Dry  Goods  Co.,  90  Mo.  649 : 

913. 
Pettit  V.  Booming  Co.,  74  Mich.  314: 
837. 
V.  Fretz,  33  Pa.  St.  118:  45. 
Petty  V.  Barrett,  37  Tex.  84 :  84,  94, 

181,  897. 
Peverly  v.  Sayles.  10  N.  H.  358 :  31, 

795.  " 
Pfeiffer  v.  McNatt,  74  Tex.  640 :  249, 

251,  854. 
Pfister  V.  Dascey,  68  Cal.   573 :  165, 

177,  335. 
Phelan's  Estate.  16  Wis.  76 :  79,  573. 
Phelps  V.  Conover,  35  111.   373:  336, 
346. 
V.  Finn,  45  la.  447 :  284,  675. 
V.  Goddard,  1  Tyler  (Vt),  60 :  892. 
V.  Jepson.  1  Root  (Ct),  48 :  143. 
V.  McDonald,  99  U.  S.  306 :  709. 
V.  Phelps,  73  111.  545  :  541,  613,  869. 
V.  Porter,  40  Ga.  485 :  356. 
V.  Rooney,  9  Wis.  80 :  83, 147,  180, 

188,  575,  577. 
V.  Shay  (Neb.),  48  N.  W.  896 :  364, 
953. 
Philleo  V.  Smalley,  33  Tex.  498:  181, 

184. 
Phillips  V.  Bishop,  31  Neb.  863 :  719. 
V.  Hunter,  3  H.  Black.  403 :  892. 
V.  Mo.  etc.  R.  Co.,  86  Mo.  540 :  37. 
V.  Root  68  Wis.  138 :  573. 
V.  Springfield,  39  111.  83 :  516,  558, 

563. 
V.  Stauch,  30  Mich.  369 :  353,  384, 

420,  472. 
V.  Warner  (Tex.),  16  S.  W.  423: 
113. 


Ixxii 


TABLE    OF    CASES. 


Phipps  V.  Acton,  12  Bush  (Ky.),  375 : 

272,  301,  547,  573.  635. 
Pickens  v.  Reed,  1  Swan,  80 :  629. 
Pickett   V.   Ferguson,  45   Ark.    177 : 

888. 
Pierce  v.  Fort,  60  Tex,  464 :  433. 
V.  Gray,  7  Gray,  68 :  798. 
V.  Jackson,  G  Mass.  242 :  309. 
V.  Kusic,  56  Vt.  418 :  75. 
V.  Railway  Co.,  36  Wis.  283 :  893, 

896,  877. 
Pierson  v.  Truax,  15  Colo.  223 :  562, 

730,  742. 
Pike  V.  Miles,  23  Wis.  168 :  514,  516, 

535. 
Pilcher  v.  Railroad  Co.,  38  Kas.  516 : 

375,  434,  945. 
Pillow  V.  Bushnell,  5   Barb.  156 :  25. 
Pinchaiu  v.  Collard,  13  Tex.  333 :  337, 

346,  347,  729. 
Pinkerton  v.  Tunilin,  22  Ga.  165 :  212, 

672. 
Pinkham  v.  Dorothy,  55  Me.  135 :  38. 
Piper  V.  Johnston,  12   Minn.  60 :  232, 

516,  522.  529. 
Pittman's  Appeal,  48  Pa.  St  315  :  723. 
Pittsfield   Bank   v.    Howk,   4  Allen, 

347:715. 
Pixley  V.  Huggins,  15   Cal.  127:  953. 
Pizzalla  v.  Campbell,  46  Ala.  40 :  223. 
Plain  V.  Roth,  107  111.  588 :  380. 
Plant  V.  Smythe,  45  Cal.  161 :  309,  880. 
Planters'  Bank  v.  Dickinson,  83  Ga. 

711:  401,  701. 
Planters',  etc.  Bank  v.  Willis,  5  Ala. 

770:  673. 
Plate  V.  Koehler,   8  Mo.   App.  396: 

459.  547,  653. 
Piatt  V.  Sheriff,  41  La.  Ann.  856 :  21, 

327. 
Platto  V.  Cady,  12  Wis.  465 :  82. 
Plimpton    V.    Sprague,   47    Vt.  467: 

847. 
Plummer   v.  White,  101  111.  474:  585, 

633. 
Poe  V.   Hardin,   65   N.   C.   447:  300, 

492. 
Poland   V.  Vesper,  67  Mo.  727 :  262, 

519,  652. 


Polk  V.  Wendell,  9  Cr.  99 :  930. 
Poliak  V.  Caldwell,  91   Ala.  353:  572. 
Pollard  V.  Thomason,  5  Humph.   56  : 

771. 
Pomeroy   v.  Buntings,  46  Ala.  254: 

224 
Pond  V.  Kimball,  101  Mass.  105 :  144, 

866,  903,  906. 
Pool  V.  Chase,  46  Tex,  210 :  432. 

V.  Wedemeyor,   56  Tex.  289 :  28, 
38. 
Poole  V.  Cook,  34  La.  Ann.  331 :  39, 
172. 
V.  Gerrard.  6  CaL  71 :  394,   422, 
485,  555. 
Pope  V.  Graham,  44  Tex.  198:  366. 
V.  Harris,  94  N.  C.  62 :  725. 
V.  Pope,  40  Miss.  616 :  348. 
Porter  v.  Bishop,   25   Fla.  749,  759: 
937. 
V.  Chapman,    65    Cal.   365:    121, 

560,  561. 
V.  Pico,  55  Cal.  176 :  953. 
V.  Stewart,   50    Miss.    717 :    116, 

186. 
V.  Sweeney,  61  Tex.  213 :  242. 
Posey  V.  Bass,  77  Tex.  512 :  155,  225. 

V.  Lontey,  12  Phila.  410:  854. 
Post  V.  Bird  (Fla.),  9  So.  888:    699, 

774,  921. 
Potshuisky    v.    Krempkan,   26    Tex. 

307 :  294,  304,  366,  399. 
Potter  v.  Safford,  50  Mich.  46 :  32. 
Potts  V.  Davenport,  79  111.  456:  116, 

562. 
Powe  V.  McLeod,  76  Ala.  418 :  19. 
Powell  V.  Eldred,  39  Mich.  552 :  824. 
Power  V.  Tuttle,   3  N.   Y.    396:  41, 

607. 
Powers  V.  Leith,  53  Cal.  711 :  912. 
V.  Sample  (Miss.;,  11  So.  739. 
Powles  V.  Innes,  11  M.  &  W.  10 :  609. 
Prater  \.  Prater,  87  Tenn.  78 :  582. 
Pratt  V.  Atkins,  54  Ga.  569  :  279. 

V.  Burr,  5  Biss.  36:  128,  506,  507, 

547. 
V.  Delevan,  17  la.  307 :  727. 
V.  Topeka    Bank,    12  Kas.   570 : 
346,  347,  378,  728. 


TABLE    OF    CASES. 


Ixxiii 


Preiss  v.  Campbell,  59  Ala.  635 :  575, 

579. 
Prescott  V.  Prescott.  45  Cal.  58 :  164, 

165,  170,  177.  211,  235. 
V.  TruGuian,  4  Mass.  627 :  945. 
V.  Williams,  5  Met.  (Mass.)  433: 

945. 
Pressley  v.    Robinson,   57  Tex.   453 : 

207, 595. 
Pribble  v.  Hall,  13  Bush,  66:  269,373. 
Price  T.  Ass'u,  101  Mo.  107:  707. 

V.  Osboin,  34  Wis.  34 :  45.  373. 
Prichaid  v.  Atkinson,  3  N.   H.    335 : 

945. 
Pridgen  v.  Warn,  79  Tex.  588 :  340. 
Primrose  v.    Browning.   59  Ga.   69: 

442. 
Prince  v.  Hake,  75  Wis.  638:  188. 
V.  Malone  (Gal.  Term,  1881) :  346. 
V.  Nance,  7  S.  C.  351 :  786,  816. 
Pritchard  v.  Ward,  64  Ga.  446 :  157, 

170. 
Probate  Court  v.  Winch,  57  Vt.  282 : 

633. 
Probst  V.  Scott,  31  Ark.  652 :  835. 
Prosser  v.  Hartley,  35  Minn.  340 :  814. 
Prout   V.  Vaughn,    52  Vt.   451:  424, 

519,  711,  873,  918. 
Pryor  v.  Smith,  4  Bush,  379 :  346. 
V.Stone,    19  Tex.    37:    158,   223, 

232,  252,  577,  603. 
Pudney  v.  Burkhart,  62  Ind.  179  :  862. 
Puett  V.  Beard,  86  Ind.  172 :  880. 
Pullen  V.  Monk,  82  Me.  412:  827. 
Pulliam  V.  Sewell,  40  Ga.  73 :  41,  280. 
Purcell  V.  Dittraan,  81  Ky.  148 :  843, 

347,  355,  500, 
Purple  V.  Farrington.   119  Ind.  164: 

906. 
Putnam  v.  Young,  57  Tex.  464 :  709. 
Putte  V.  Geller,  47  Mich.  560 :  519. 
Pyett  V.  Rhea,  6  Heisk.  137 :  780. 

Q. 

Quackenbush  v.  Danks,  1  Denio,  128 : 

280. 
Quehl  V.  Peterson  (Minn.),  49  N.  W. 

391:  565. 


Quick  V.  Miller,  103  Pa.  St.  67 :  45. 
Quigley  v.  Gorham,  5  Cal.  418 :  804. 
Quinby  v.  Conlan,  104  U.  S.  420 :  937, 

941,  949. 
Quiun  V.  Brown,  71  la.  376 :  156. 

V.  Kinyon,  100  Mo.  551 :  31,  32. 
Quinn's  Appeal,  86  Pa.  St.  447 :  551. 


K. 


Raber  v.  Gund,  110  III.  581 :  112,  159, 

213,  216,  265. 
Race  V.  Oldridge,  90  111.  250 :  794. 
Radcliff  V.  Wood,  25  Barb.  52 :  140, 

145,  861. 
Radford  v.  Lyon,  65  Tex.   471 :  191, 

223,  571. 
Ragio  V.  State,  86  Tenn.  272:  27. 
Raglaud  v.  Moore,  51  Ga.  476 :  729. 
V.  Rogers,  34  Tex.  617 :  223,  640. 
Railroad  Co.  v.  Adams,  46  Ark.  159* 
63. 
V.  Amos,  54  Ark.  162 :  315. 
V.  Baker,  122  Ind.  433 :  897. 
V.  Dooley,  78  Ala.  524 :  893. 
V.  Dunmeyer,  113  U.  S.  629:  944. 
V.  Fremont  County,  9  Wall  89 : 

932. 
V.  Kennedy,  90  Tenn.  185 :  832. 
V.  Knapp,  51  Tex.  592 :  597. 
V.  Maltby,  34  Kas.  125 :  893,  897. 
V.  May,  25  O.  St  347 :  896. 
V.  McShane,  22  Wall.  444  :  461,953. 
V.  Morgan,  42  Kas.  23 :  364,  787. 
V.  Prescott,  16  Wall.  603 :  953. 
V.  Ragland,  85  111.  375 :  896,  899. 
V.  Smith,  9  Wall.  95 :  932. 
V.  Winter,  44  Tex.  597 :  252,  304. 
Rainey  v.  Capps,  22  Ala.  288 :  579. 

V.  Chambers,  56  Tex.  17  :  632,  658. 
Raley  v.  Ross,  59  Ga.  862 :  76. 
Ramey  v.  Allison,  64  Tex.  697 :  391. 
Ramsey  v.  Barnabee,  88  111.  135 :  801. 
Randal  v.  Elder,   12  Kas.  257:  112, 

113,  147,  149,  151,  515. 
Randall  v.  Buffington,  10  Cal.  491 : 
509,  524. 
V.  Tex.  Cent.  R.  Co.,  63  Tex.  586 : 
386,  946. 


Ixxiv 


TABLE   OF   CASES. 


Randell  v.  Edert,  7  Minn.  359 :  940. 
Randolph  v.  Little,  63  Ala.  397:   11, 

556,  637,  665. 
Range  Co.  v.  Alexe,  28  Mo.  App.  184 : 

913. 
Rankin  v.  Shaw,  94  N.  C.  405 :   299, 

532. 
Ranney  v.  Miller,  51  Tex.  269 :  570. 
Ransom   v.  Duff,  60   Miss.  901 :  722, 

910. 
Rasure  v.  Hart,  18  Kas.  340 :  792. 
Ray  V.  Adams,  45  Ala.  168 :  410,  724. 
V.  Hayes,  28  La.  Ann,  641 :  799. 
V.  Thornton,  95  N.  C.  571 :  673, 

677. 
V.  Yaruell,  118  Ind.  112:  730,  731. 
Rayburn   v.    Norton,  85  Tenn.  351: 

548. 
Raynes  v.   Whicher,   6  Allen,   292: 

797,  803. 
Read  v.  Livingston,  3  Johns.  500 :  424. 
V.  Rahm,  65   Cal.  343:    165,  211, 

212. 
V.  Sang,  21  Wis.  678 :  691. 
Reasoner  v.  Markley,  25   Kas.   635: 

952. 
Reaume  v.  Chambers,  22  Mo.  36 :  121, 

603. 
Recht  V.  Kelly,  82  111.  147 :  541,  869, 

885. 
Re  Church,  15  R  L  245 :  789. 
Cross,  2  Dill.  320 :  373. 
Handlin,  3  Dill.  290 :  144. 
Jones,  2  Dill.  343 :  814. 
Kennedy,  3  S.  C.  216:  41,  280, 

644. 
Lambson,  2  Hughes,  233 :  58,  63, 

641,  644. 
Poleman,  5  Biss.  526 :  418. 
Smith,  2  Hughes,  307 :  144,  905. 
Turtelling,  2  Dill.  339 :  232. 
Wells'  Estate,  63  Vt.    116:   465, 

593. 
Wetmers,  Deady,  585  :  799. 
Whitehead,  3  N.  B.  R.  599 :  339. 
Rector  v.  Ashley,  6  Wall.  142 :  944. 
V.  Gibbon,  111  U.  S.  276:  941. 
V.  Rotton,  3  Neb.  171 :    373,  550, 
687,  742,  747. 


Redden  v.  Potter,   16   111.    App.  265: 

918. 
Redfern  v.  Redfern,  38  111.  509 :   94, 

422. 
Redfield  v.  Hart,  12  la.  355 :  704,  729. 

V.  Parks,  132  U.  S.  239 :  944. 
Red  River,  etc.  Co.  v.  Sture,  33  Minn. 

95 :  947. 
Reece  v.  Renfro,  68  Tex.  192  :  360,  559. 
Reed  v.  Bank,  29  Gratt.  719 :  541. 

V.  Cooper,  30  Kas.  574 :  797,  798. 
v.  Defebaugh,    24    Pa.    St.   495 : 

346. 
V.  Howard,  71  Tex.  204 :  301. 
V.  Ownby,  44  Mo.  204 :  309. 
V.  Union  Bank,   29    Gratt.  719 : 
54,  230,  363,  549. 
Reed  Lumber  Co.  v.  Lewis  (Ala.),  10 

So.  333 :  870,  885. 
Reeves  v.  Haynes,  88  N.  C.  310:  79. 
V.  Petty,   44    Tex.  251 :   94,   301, 

658. 
V.  Sherwood,  45  Ark.  520 :  518. 
Regan  v.  Zeeb,  28  Ohio  St.  483 :  618, 

786. 
Register  v.  Hensley,  70  Mo.  190 :  21, 

464,  637. 
Reichart  v.  Felps,  6  Wall.   160 :  930. 
Reid  V.   McGowan,  28  S.  C.  74 :  405, 

407. 
Reifenstahl  v.  Osborne,  66   la  567: 

594. 
Reilly  v.  Reilly  (111.),  26  N.  E.  604 : 

574,  695. 
Reinbach  v.  Walter,  27  111.  393 :  180, 

727. 
Reinhardt  v.  Reinhardt,  21  W.  Va  76 : 

293,  642. 

Reinhart  v.  Bradshaw,  29  Nev.  255 : 

135,  933. 

V.  Soap  Co.,  33  Mo.  App.  24 :  923. 

Reinstein  v.  Daniels,  75  Tex.  640 :  567. 

ReithmiUer  v.  People,  44  Mich.  280 : 

25,  32,  34. 
Ren  V.  Driskell,  11  Lea,  649 :  31,  330. 
Rendlemau    v.   Rendleman,   118  111. 

257:  73. 
Rennick  v.  Hendricks,  4  Bibb,  303 : 
552. 


TABLE    OF    OASES. 


liXV 


Rt-penn  v.  Davis,  72  la.  548 :  563, 
Reske  v.  Rcske,  51  Mich.  541 :  49,  50, 

194,  197,  198,  294. 
Revalk  v.  Kramer,  8  Cal.  66 :  96,  384. 

606.  G08,  952. 
Rex  V,  Commissioner,  6  Ad.  &  El. 

17:  24 
Reybers  v.  McComber,  67  Cal.  395: 

882. 
Reynolds  v.  Haines  (la.),  49  N.  W. 
851 :  836. 
V.  Hull,  36  la.  394:  147,  152. 
V.  Morse,  52  la.  155  :  422,  423, 431. 
V.  Pixley,   6  Cal.    165 :  137,  140, 

211. 
V.  Robinson,  64  N.  Y.  589 :  45. 
V.  Tenant,  51  Ark.  87 :  304,  310, 
745. 
Rhea  v.  Rhea,  15  Lea,  527 :  268. 
Rhead   v.    Hounson,    46    Mich,   244: 

519. 
Rhodes  v.  McCormick,  4  la.  368 :  151, 
179,  184,  188,  219. 
V,  Williams,  12  Nev,  20 :  143,  905, 
Rhorer  v,  Brockhage,  86  Mo,  544 :  546, 

574,  644,  652, 
Rhyne  v,  Guevara,  67  Miss,  139 :  406, 

409,  757, 
Rice  V,  Nolan,  33  Kas.  28 :  866,  885, 
901. 
V.  Rice,  108  111,  199 :  265,  270, 
V.  Rudd,  57  Vt.  6:  187,  192,  567. 
V.  Southgate,  16  Gray,  142 :  287, 
Rich  V,  Tubbs,  41  Cal,  34 :  601,  606. 
Richards  v,  Chace,  2  Gray,  383 :  14, 
384,  406,  554, 
V.  Green,  73  111.  54 :  61,  64. 
V,  Haines,  30  la.  574 :  866. 
V.  Hubbard,  59  N,  H.  158 :  797. 
V.  Leaming,  27  111.  432:  349. 
V,  Shear,  70  Cal.  187 :  366, 
Richardson  v.  Adler,  46  Ark.  43 :  304, 
310,  671,  745,  882.  905. 
V.  Butler,  1  Va,  L,  J,  120 :  15, 
V,  Buswell,  10  Met.  (Mass.)  506 : 

818. 
V,  Duncan,  2  Heisk,  220  :  810, 
V.  Emswiler,  14  La,  Ann.  658 :  43, 
V.  Hall,  124  Mass.  237 :  793. 


Richardson  v.  Richardson,  49  Mo.  29 : 
457, 
V,  Wallis,  5  Allen,  78:  715. 
V.  Woodstock  Co.  (Ala.X  8  So.  7 : 
429,  536. 
Richie  v.  McCauley,  4  Pa.  St.  471 :  800, 
Riddell  v.  Shirley,  5  Cal.  488 :  524. 
Riecke   v,  Westenhoff,   85   Mo.    642: 

377,  379. 
Riehl   V.  Bingenheimer,  28  Wis.  88: 

123,  375,  395,  397,  476. 
Ries  V.  McClatchey,  128  Ind.  125 :  323, 

760,  914. 
Riggs  V.  Sterling,  60  Mich.  643 :  169, 

194,  705, 
Riley  v,  Gaines,  14  S,  C.  454 :  152, 
V.  Pehl,  23  Cal.  70 :  170,  211. 
V.  Smith  (Ky,),  5  S.  W.  869 :  78, 
Ripperdon  v,  Cozine,  8  B.  Mon,  466 : 

552, 
Ring  V,  Burt,  17  Mich,  465 :  352,  405, 

406,  472,  549, 
Rising  V,  Stannard,  17  Mass.  282 :  135. 
Rix  V.  Capitol  Bank,  2  Dill,  370 :  56a 

V,  McHenry,  7  Cal.  91 :  211, 
Roach   V,  Hacker,  2  Lea,  634:  559, 
566,  582. 
V,  Karr,  18  Kas.  534 :  426. 
Robb  V.  McBride,  28  la,  386:  285,437, 

562,  572. 
Robbins  v.  Bunn,  54  111.  48 :  950,  95a 
V.  Cookendorfer,   10  Bush,  629: 
422,  667.    . 
Robert  v.  Adams,  38  Cal.   382:  798, 
801,  807. 
V.  Coco,   25  La,   Ann,    199 :  170, 
172. 
Roberts  v.  Cannon,  4  Dev.  &  Bat  L. 
267 :  83.  34. 
V.  Cook,  68  Ga.  324 :  694. 
V.  McGur,  82  Mich.  221 :  911,  9ia 
V.  Moudy,  30  Neb.  683 :  598,  773, 

819. 
V.  Riggs,  84  Ky.  251 :  365. 
V.  Robinson,  63  Ga.  666 :  893. 
V.  Trammell.  55  Ga.  883 :  375, 39a 
V.  Ware,  80  Mo.  M'^ :  547,  644. 
Robertson  v.  Paul,  16  Tex,  472:  358, 
403, 


Ixxvi 


TAIJLK    OF    CASES. 


Robertsou  v,  Sullivan,  81  Minn.  197 : 

558,  569. 
Robinson  v.  Baker,  47  Mich.  619 :  269, 
625. 
V.  Davenport,  40  Tex.  333 :  372. 
V.  Hughes,  117  Ind.  293:  773,849, 

906. 
V.  Leavitt.  7  N.  H.  102:  616. 
V.  McDonald,  11  Tex.  885:  138. 
V.  Smithey,  80  Ky.  636:  116. 
V.  Stewart,  10  N.  Y.  189 :  424. 
V.  Swearingin    (Ark.),    17  S.    W. 

365 :  810,  730,  745,  840. 
V.  Wiley,  15  N.   Y.  494:  31,  698, 

761. 

V.  Wilson,  15  Kas.  595 :  303,  304. 

Robson  v.  Lindrum,  47  Ga.  252 :  619. 

V.  Rawlings,  79  Ga.  354 :  526, 874. 

Roche  v.   R    I.   Ins.  Co.,  2   111.  App. 

860:  879. 
Rock   v.    Haas,  110   111.  528:  81,  265, 
641,  656. 
V.  Kreig,  89  la.  239 :  404. 
Rockafellow  v.  Peay,  40  Ark.  69 :  117. 
Rockhey  v.  Rockhey,  97  Mo.  76 :  457. 
Rock^^pell  v.  Hubbell,  2  Doug.  (Mich.) 

198 :  41.  280. 
Roco  V.  Green,  50  Tex.  489 :   28,  30, 

45,  58. 
Rodgers  v.   Ferguson,  82  Tex.  588: 

804 
Roe  V.  Gemniill,  1  Houston  (Del),  9 : 

817. 
Rofif  V.  Johnson,  40  Ga.  555 :  81,  77, 

456,  606,  619,  645,  693. 
Roger  V.  Adams,  66  Ala.  600:  430. 
Rogers  v.  Blum,  56  Tex.  1 :  838. 
V.  Brackett,  84  Minn.  279 :  912. 
V.  Fox.(Tex.),  16  S.  W.  781:  772. 
V.  Green,  85  Tex.  735 :  726,  729. 
V.  Kimsey,  101  N.  C.  559:  9,  299. 
V.  Marsh,   78  Mo.   64 :    288,   647, 

707. 
V.  Maye?,  84  Mo.  520 :  644,  645. 
V.  Meyers,  68  111.  92 :  380. 
V.  Nichols,  20  Tex.  724:  145. 
V.  Ragland,  42  Tex.  444:  640. 
V.  Raisor,  60  la.  355 :  440,  441. 
V.  Renshaw,  37  Tex.  625 :  384. 


Rogere  v.  Savings  Bank,  63  N.  H.  428 : 
187. 
V.  Trevathan,  67  Tex.  406 :  596. 
V.  Waterman,   25    Pa.   St.    184: 
778. 
Rohrer  v.  Cunningham,   138  Pa.  St 

162:  817. 
Roig  V.  Schultz,  42  O.  St.  165 :  419, 

530. 
Rolf  V.  Timmermeister,  15  Mo.  App. 

249,  707. 
Rollings  V.  Evans,  23  S.  C.  316:  85. 
Rollins  v.  Allison,  59  Vt.  188 :  879. 

V.  O'Farrel  77  Tex.  90  :  579. 
Root  V.  McGrew,  3  Kas.  215 :  41,  280. 
Rose  V.  Blankeuship  (Tex.),  18  S.  W. 
101:  750. 
V.  Lumber  Co.,  78  Cal.  885 :  935, 

953. 
V.  McHose,  26  Mo.  590 :  457. 
V.  Sharpless,  33  Gratt  153 :  535. 
Rosenthal  v.  Scott,  41  Mich.  632:  814. 
Ross  v.  Bourne,  14  Fed.  858 :  824. 
v.  Bradford,  28  S.  C.  71 :  445. 
V.  Hannah,  18  Ala.  125 :  866. 
V.  Hawthorne,  55  Miss.  551 :   864. 
v.  Hellyer,  26  Fed.  413 :  558,  565. 
V.  Smith,  44  Tex.  398 :  647,  705. 
V.  W^orsham,    65    Ga.    624 :    866, 
550. 
Rossiter  v.  Cossit,   15  N.  H.  38 :  616. 
Roth  V.  Insley,  86  Cal.  134 :  952. 
Rothgerber  v.  Dupey,  64  111.  452 :  38. 
Rothschild  v.  Boelter,  18  Minn.  861 : 

795. 
Rottenberry  v.    Pipes,   53   Ala.  447 : 

20,  494,  627,  637. 
Roundy   v.    Converse,  71    Wis.   524: 

873. 
Rountree  v.  Dennard,  59  Ga,  629 :  80. 
Roupe  V.  Carradine,  20  La.  Ann.  244 : 

15,  41. 
Rovve  V.  Kellogg,  54  Mich.  209:  46. 
Rowell  V.  Powell,  53  Vt.   302:    309, 

809. 
Rowley  v.  Stray,  82  Mich.  70 :  34. 
Roy  V.  Clarke,  75  Tex.  28 :  353. 

V.  McPherson,  11  Neb.  197:  604 
Rozelle  v.  Rhodes,  116  Pa.  St.  134 :  840. 


TABLE    OF    CASES. 


Lxxvii 


Rube  V.  Sullivan,  23  Neb.  779:  944. 
Rubelman    v.   Kummel,   72    la.  40: 

424. 
Rudderow  v.  State,  31  N.  J.  L.  512 : 

25. 
Rugg  V.  Hoover,  28  Minn.  404 :  865. 
Ruggles  V.  Illinois,  108  U.  S.  526:  25. 
Ruhl  V.  Kauflfman,  65  Tex.  734 :  191, 

196. 
Rulemau  v.  Pritchett,  56  Tex.  483: 

431. 
Runnels  v.  Runnels,  27  Tex.  518 :  90, 

457,  621  627. 
Runyan's    Appeal,   27    Pa.   St    121: 

857. 
Ruobs  V.  Hooke,  3  Lea  (Tenn.),  302 : 

123,  395,  529. 
Rush  V.  Gordon,  38  Kas.  535 :  188. 
V.  Valentine,  12  Neb.  513:  942. 
Rushing  v.  Gi\use,  41  Ga.  180 :  550. 
Russ  V.  Henry,  58  Vt.  388 :  192. 
Russel  V.  Lowth,  21  Minn.  167 :  926. 
Russell  V.  Cleary,  105  Ind.  502 :  760. 
V.  Dean,  30   Hun,  242 :  779,  866, 

882. 
V.  Lennon,  39  Wis.  570 :  144,  815, 

866,  903,  909. 
V.  Lewis,  2  Pick.  508 :  258. 
V.  Place,  94  U.  S.  606  :  669. 
V.  Randolph,  26  Gratt.   705 :  11, 

279. 
V.  Rumsey,  35  111.  362 :  427. 
V.  Speedy,  38  Minn.  303 :  181,  565, 

566. 
V.  State,  77  Ala.  89 :  429. 
Rutherford  v.  Jamieson,  65  Miss.  219 : 

511. 
Rutledge  v.  McFarland,  75  Ga.  774 : 
102. 
V.  Murphy,  51  Cal.  388 :  942. 
V.  Rutledge,  8  Bax.  33 :  806. 
Rutt  v.  Howell,  50  la.  535 :  295. 
Ruttenberg    v.    Pipes,   53    Ala,  452: 

492. 
Rutter  V,  Shumway,  16  Colo.  95  :  764. 
Ryan  v.  Pettigrew,  7  S.  C.   146 :  729. 

V.  Wessels,  15  la.  145 :  294,  304. 
Ryhiner  v.  Frank,   105   111.   326:  81, 
265. 


S. 

Saddlers'  Co.  v.  Badcock,  2  Atkynu, 

554:  609. 
St  Louis  v.  Gas  Light  Co.  (Mo.),  9  S. 

W.  581 :  135. 
St  Louis,  etc.  v.  Hart  38  Ark.  112: 

914 
St  Louis  Type  Foundry  v.  Publica- 
tion Co.,  74  Tex.  651 :  764. 
St  Paul's  Church  v.  Ford,  34  Barb. 

16:  135. 
St.  Paul,  etc.  V.  Forseth,  3  Land  Dec. 

457:  940. 
St  Peter  Co.  v.  Bunker,  5  Minn.  153 : 

947. 
Sale  V.  McLean,  29  Ark.  612:  520. 
v.  Wingfield,  55  Ga.  622 :  338. 
Sallee  v.  Walters,  17  Ala.  488 :  58,  802. 
Salsbury  v.  Parsons,  36  Hun,  12 :  817. 
Sammis  v.  Smith,  1  N.  Y.  Sup.  444 : 

797. 
Sampson  v.  Williamson,  6  Tex.  109: 

297,  384,  421,  550,  554. 
Sanborn  v.  Stark.  31  Fed.  18 :  351. 
Sanderlin  v.  Sanderlin,  1  Swan,  441 : 

59,  62. 
Sanders  v.  Russell,  86  Cal.  119:  708. 

v.  Sheran,  66  Tex.  655  :  562. 
Sandlin  v.  Robinson,  62  Ala.  477 :  517. 
Sands  v.  Cod  wise,  4  Johns.  536:   424 

V.  Davis,  40  Mich.  14 :  941. 
Sandwich  Co.  v.  Zellmer  (Minn.),  51 

N.  W.  379:  719. 
Sanford  v.  Finkle,  112  111.  146:    123. 
Sanner  v.  Shivers,  76  Ga.  335 :  825. 
Sansberry  v.  Simms,  79  Ky.  527 :  592, 

635,  641. 
Sanson!  v.  Harrell,  55  Ark.  572 :  741. 

V.  Harrell,  51  Ark.  429 :  640. 
Santa  Cruz  v.  Cooper,  56   CaL  339 : 

94,  96,  580,  640. 
Sappington   v.  Oeschli,  49   Mo.  244 : 

309,  880. 
Sarahos  v.  P'enlon,  5  Kas.   592 :  225, 

226. 
Sargent  v.  Chubbuck,  19  la.  37 :  156, 

172,  285,  437. 
Sasser  v.  Roberts,  68  Ga.  252 :  817, 910. 


Ixxviii 


TABLE    OF   OASES. 


Saulsbury  v.  McCalluin,  65  Ga.  102 : 

525. 
Saunders  V.  Commonwealth,  10  Gratt 

494,  496 :  14. 
V.  Howard,  51  Tex.  23 :  403. 
V.  Wilson,  19  Tex.  194:  866. 
Savage  v.  Davis,  134  Mass.  401 :  797, 

806,  882. 
Savannah,  etc.    R.    Co.   v.  Davis,  25 

Fla.  917:  946. 
Savery  v.  Browning,  18  la.  246 :  309, 

880. 
Savings  Bank  v.  Evans,  28  S.  C.  521 : 

31. 
V.  Kennedy,  58  la.  454 :  562. 
v.  United    States,  19  Wall.  228, 

239 :  13. 
Sawyer  v.  Heirs,  etc.,  28Vt249:  796. 
V.  Perry,  62  la.  238 :  424. 
V.   Thompson,  4    Frost  (N.   H.), 

510:  893. 
Sawyers  v.  Sawyers,  93  N.  C.  321 :  300. 
Saylor  v.   Powell,  90  N.  C.  202 :  640; 

641. 
Scarborough  v.  Malone,  67  Ala.  570 : 

579. 
Schadt  V.  Heppe,  45  Cal.  433 :  31, 492. 
Schsefer  v.  Kieuzel,  123  111.  430:  630. 
Sch^ffer  v.  Beldsmeier,  9  Mo.  App. 

445 :  151,  518,  670,  758. 
Schaife  v.  Argall,   74  Ala.  473 :  556, 

567,  572,  579. 
Schaller  v.  Kurtz,  25  Neb.  655 :  774, 

918. 
Schermerhorn  v.   Mahaffie,   34  Kas. 

108:  694. 
Scheuber  v.  Ballow,  64  Tex.  166 :  253. 
Schlapback  v.  Long,  9  Ala.  525 :  905. 
Schlarb  v.  Holderbaum,  80  la.  394 : 

465,  466. 
Schlegel  v.  Beer  Co.,  64  How.  (N.  Y.) 

196:  24 
Schlicht  V.  State,  56  Ind.  173 :  916. 
Schneider  v.  Bray,  59  Tex.  670 :  317, 

435,  443,  592. 
V.  Hoffman,  9  Mo.  App.  280  :  377, 

457. 
Schoffen  v.  Landauer,  60  Wis.  334 : 

147,  409. 


Schoolfield  v.  Houle,  13  Colo.  894: 

933. 
Schooner  Pauline,  7  Cr.  152:  24. 
Schouton  V.  Kilmer,  8  How.  (N.  Y.) 

527  :  292,  322,  323,  761. 
Schreiber  v.  Carey,  48  Wis.  215:  118, 

403,  720. 
Schriber  v.  Piatt,  19  Neb.  625 :  388. 
Schuelenburg  v.  Martin,  2  Fed.  747 : 

351. 
Schulenberg  v.  Harriman,  21  Wall 

44:  946. 
Schuler  v.  Miller,  45  O.  St.  325 :  418, 

419. 
Schumann  v.  Pilcher,  36  111.  App.  43 : 

850. 
Schuyler  v.  Broughton,  76  Cal.  524 : 

83,  165. 
Schwacke  v.  Langton,  12  Phila.  402 : 

826. 
Scofield  V.  Hopkins,  61  Wis.  370 :  180, 

194,    197,  200,  203,  204,   294^ 

441,  513. 
ScoUey  v.  Pollock,  65  Ga.  339 :  815. 
Scott  V.  Brigham,  27  Vt.  561 :   816, 

435,  443. 
V.  Cheatham,  78  Ya.  83 :  15,  54, 

557. 
V.  Cunningham,    60    Tex.    566 : 

658. 
V.  Kenan,  94  N.  C.  296 :  52,  144^ 

908. 
V.  Lane,  109  N.  C.  154:  702. 
V.  Simons,  70  Ala.  352 :  427,  428, 

471,  579. 
V.  State,   1    Sneed  (Tenn.),   629 : 

135. 
Scruggs  V.  Foot,  19  S.  C.  274 :  649. 
Scull  V.  Beatty.  27  Fla.  426 :  447,  461. 
Seals  V.  Pheiffer,  84  Ala.  359 :  637. 
Seaman  v.  Luce,  23  Barb.  242 :  785, 

865. 
V.  Nolen,  68    Ala.  463 :  393,  412, 

430,  471. 
Seamans  v.  Carter,  15  Wis.  548 :    41. 
Searle  v.  Chapman,  121  Mass.  19 :  117, 

403,  412,  725,  875. 
Sears  v.  Dixon,  38  Cal.  326 :  384,  485, 

486. 


TABLE   OF   CASES. 


Ixxix 


Sears  v.  Hanks,  14  O.  St  298 :  59,  112, 

515,  516,  530,  533,  535,   730, 

918. 
V.  Sears,  45  Tex  557 :  67,  88,  96, 

360,  459,  695. 
Seatoff  V.  Anderson,  28  Wis.  215 :  403. 
Seaton  v.  Marshall,  6  Bush,  429 :  58, 

61. 
V.  Son,  32  Cal.  481 :  136,  140. 
Seek  V.  Haynes,  68  Mo.  13 :  617. 
Seeley  v.  GwiUim,  40    Ct.   106 :  764, 

792. 
Seibert's  Appeal,  73  Pa.  St.  361:  231, 

669. 
Selb  V.  Mabee,    14  Bradw.  (111.   App.) 

574 :  617. 
V.  Montague,  102  III.  446:  617. 
Seligsonv.  Collins,  64  Tex.  314:305, 

730,  743,  755. 
Sellers'  Estate,  82  Pa.  St.  153:  788, 

856. 
Sentell  v.  Armor,  35  Ark.  49 :  138,  400. 
Senter  v.  Lambeth,  59  Tex.  259 :  346. 
Sergeant  v.  Steinbei-ger,  2  Ohio,  305  : 

143. 
Servanti  v.  Lusk,   43   Cal.    238 :    140, 

861,  909. 
Settles  V.  Bond,  49  Ark.  114:  863. 
Severson  t.  Porter,  73  Wis.   70,   77 : 

9C8. 
Sewall  V.  Jones,  9  Pick.  412 :  43. 
Sewell  V.  Holland,  61  Ga.  608 :  442. 
Seymour  v.  Cooper,  26  Kas.  539 :  823, 
V.  Sanders,  3  Dill.  437 :  925,  926, 

947. 
Shaekleford  v.  Todhunter,  4  III.  App. 

271 :  169,  266. 
Shacklett  v.  Scott,  23  Mo.  App.  322 : 

666,  668,  670. 
Shadt  V.  Heppe,  45  Cal.  437 :  380. 
Shaffer  v.  Huff,  49  Ga.  589 :  375. 
Shannon  v.  Dillon,  8  B.  Mon.  389: 

646. 
V.  Gray,  59  Tex.  251 :  644. 
Sharon  v.  Wooldrick,  18  Minn.  354 : 

940. 
Sharp  V.  Bailey,  14  la.  387 :  422. 

V.  Johnston  (Tex.),  19  S.  W.  259 : 

569. 


Sharp  V.  Spier,  4  Hill,  76  :  41. 
Sliarpe  v.  Orm,  61  Ala.  263 :  428. 
Shattless  v.  Melton,  65  Ga.  464 :   648, 

693,  697. 
Shaw  V.   Davis,  55   Barb.  389:   796, 

817. 
V.  Hearsey,  5  Mass.  523 :  259. 
V.  Millsaps,  50  Miss.  380 :  535. 
Shawano  Bank  v.  Koeppen  (Wis.),  47 

N.  W.  723 :  514,  516. 
Shay  V,  Wheeler,  69  Mich.  254 :  652. 
Sheehy  v.  Miles,  93  Cal.  228 :  657,  704 
Sheffey  v.  Davis,  60  Ala.  548 :  673. 
Shelby  v.  Burtis,  18  Tex.  651 :  391. 
Sheldon  v.  Bliss.  8  N.  Y.  31 :  857. 
Sheley  v.  Detroit,  45  Mich.  431 :  25, 34, 

788. 
Shell  v.  Duncan,  31  S.  C.  547 :  329. 

V.  Young.  32  S.  C.  462 :  717. 
Shelley's  Appeal,  36  Pa.  St.  373 :  542, 

723. 
Shelley  v.  Smith,  59  la.  453 :  825. 
Shelor  v.  Mason,  2  S.  C.  233 :  41. 
Shelton  v.  Aultman,  82  Ala.  315 :  339, 

428. 
V.  Carrol,  16  Ala.  148 :  579,  696. 
V.  Hurst,  16  Lea,  470 :  587. 
Shepard  v.  Brewer,  65  111.  383 :  61, 123, 

562,  586. 
V.  Cross,  33  Mich.  98 :  139. 
Shepardson  v.  Rowland,  28  Wis.  108 : 

135. 
Shepherd    v.    Cassiday,   20  Tex.  29: 

558,  562.  567. 
V.  Murrill,  90  N.  C.  208 :  866,  880. 
v.  White,  11  Tex.  354 :  338. 
Shepley  v.  Cowan,  91  U.  S.  330 :  941. 
Sheppard  v.  Simpson,   1    Dev.   244 : 

725. 
Sherman  v.  Clark,  24  Minn.  37 :  818. 
Sherrible  v.  Chaffee  (R.  L),  21  Atl.  103 : 

875,  878. 
Sherrid  v.  Southwick,  43  Mich.  518 : 

121,    138,    141,   352,  384,  472, 

546. 
Sherry  v.  Brown,  66  Ala.  51 :  556. 
Sherwood  v.  Reade,  7  Hill,  431 :  41. 
Shindler  v.  Givens,  63  Mo.  395 :  170, 

171,  288,  668,  670,  730. 


Ixxx 


TAULE    OF    CAKES. 


Shinn  v.  Young,  57  Cal.  525 :  947. 
Shipe  V.   Repass,  28  Gratt   734:  55, 

531,  533. 
Shirack   v.   Shirack  (Kas.X   24   Pac. 

1107:  574,650. 
Shirland  v.  Union  Bank,  65  la.  96 : 

562. 
Shirley  v.  Teal,  67  Ala.  419  :  665. 
Shiver  v.  Williams,  85  Ga.  583:  910. 
Shoeraake  v.  Chalfant,  47  Cal.  432 :  70. 
Shoemaker  v.  Collias,  49  Mich.  595 : 

352,  420,  472,  688. 
V.  Gardner,    19    Mich.    96 :    688, 

700. 
Shoenberger  v.  Zook,  34  Pa.  St.  24 : 

429. 
Shoet  V.  McGruder,  22  Fed.  46 :  905. 
Shof ner  v.  Shof ner,  5  Sneed,  95 :  629. 
Shore  v.  Gastley,  75  Ga.  813 :  78. 
Shoreman  v.  Eakin,  47  Ark.  351 :  947, 

950. 
Shores  v.  Shores,  34  Mo.  App.  208 : 

115. 
Short  V.  McGruder,  22  Fed.  46 :  512. 

V.  Medberry,  29  Hun,  39 :  824. 
Showers  v.  Robinson,  43   Mich.  502, 

510:  493,  546,  547,  549,  587, 

615,  644. 
Shryock  v.  Latimer,  57  Tex.  674:  246, 

251,  570. 
Shubert  v.  Winston  (Ala.),  11  So.  200 : 

751. 
Shumaker  v.  Johnson,  35  Ind.  33 :  45. 
Sibley  v.  Baker,  23  Mich.  312 :  403. 

V.  Lawrence,  46  la.  563 :  354. 
Sides  V.  Schaifif  (Ala.),  9  So.  228  :  564. 
Siebert  v.  Milligan,  110  Ind.  Ill :  868. 
Sigerson  v.  Sigerson,  71  la.  476 :  727. 
Silberberg  v.  Pearson,  75  Tex.  287: 

394. 
Silloway  v.  Brown,  12  Allen,  30 :  85, 

87,  94,  135,  258,  580,  581,  616, 

715. 
Sillyman  v.  King,  36  la.  207  :  940. 
Silsbe  V.  Lucas,  36  111.  462 :  337,  688. 
Silverberg  v.  Trilling  (Tex.),  18  S.  W. 

591:  719. 
Simmon  v.  Walker,  28  La.  Ann.  608: 

136. 


Simmons  v.    Anderson,   56  Ga.   53: 
372,  544,  548. 
V.  Ogle,  105  U.  S.  271 :  953. 
V.  Spruill,  3  Jones'  Eq.  9 :  331 
V.  Wagner,  101  U.  S.  260 :  953. 
Simon  v.  Walker,  28  La,  Ann.  608 : 

135. 
Simonds  v.  Haithcock,  26  S.  C.  595 : 
157. 
V.  Powers,  28  Vt.  354 :    41,  63b, 
651.  • 

Simons  v.  Bryce,  10  S.  C.  354 :  450. 

V.  Lovell,  7  Heisk.  510:  813. 
Simonton  v.  Mayblum,  57  Tex.  7 :  596. 
Simpson  v.  Houston,  97  N.  C.  344: 
327. 
V.  Leech,  86  111.  286 :  907. 
V.  Robert,  35  Ga.  180 :  375. 
V.  Simpson,  80  Cal.  237:  70,  555. 

556,  777,  847,  862. 
V.  Wallace,  83  N.  C.  477 :  655. 
Sims  V.  Eslava,  74  Ala.  594 :  880. 
V.  Rickets,  35  Ind.  181 :  396. 
V.  Thompson,  39  Ark.  301 :  400. 
Singer  Manufacturing  Co.  v.  Cullo- 
ton  (Mich.),  51   N.  W.  687: 
912. 
Single  V.  Phelps,  20  Wis.  398 :  874 
Singletary  v.  Hill,  43  Tex.  590 :  603. 
Singleton  v.  Huflf,  49  Ga.  584 :  619. 
Sioux  City,  etc.  Land  Co.  v.  Giffey, 

143  U.  S.  40 :  944. 
Size  V.  Size,  24  la.  580 :  590,  591,  622. 
Skaggs  V.  Nelson,  25  Miss.  88 :  339. 
Skinner  v.  Beatty,  16  Cai.   157 :  333, 
717. 
V.  Chapman,  78  Ala.  376 :  20. 
V.  Hall,  69  Cal.  195:  177,  232,235. 
V.  Moye,  69  Ga.  476 :  85,  488,  526, 

561. 
V.  Reynick,  10  Neb.  323 :  951. 
V.  Shannon,    44    Mich.    86 :  905. 
909. 
Skonten  v.  Wood,  57   Mo.  380:  116. 
262,   464,   518,  547,   603,  617, 
637. 
Slagel  V.  Murdock.  65  Mo.  522 :  669. 
Slanker   v.    Beardsley,  9  O.   SL  58!) : 
786,  874. 


TABLE    or    CASES. 


Lxxxi 


Slatter  v.  Meek,  35  Ala.  538  :  696. 
Slaughter  v.  Detiney,  15  Ind.  49 :  874, 
915. 
V.  McBride,  69  Ala  510 :  19,  393, 
471. 
Slavin  V.  Wheeler,  61  Tex.  658:  570. 
Sloan  V.  Campbell,  71  Mo.  387  :  912. 
V.  Price,  84  Ga.  172 :  241. 
V.  Waugh,  18  la.  224 :  283. 
Sluder  v.  Rogers,  64  N.   C.  289 :  279, 

637. 
Small  V.  Clifford,  38  Me.  213 :  135. 

V.  Hicks,  81  Ga.  691 :  554. 
Smalley  v.  Masten,  8  Mich.  529  :  798, 

812. 
Smelting  Co.  v.  Kemp,  104  U.  S.  647 : 

135,  933,  941. 
Smiley  v.  Biffle,  2  Barr,  52 :  646. 

V.  Bowman,  3  Grant  Cas.    132: 
542.    . 
Smith  V.  Allen,  39  Miss.  469 :  514. 
V.  Bradstreet,  16  Pick.  264  :  304. 
V.  Brooke,  49  Pa.  St.  147 :  825. 
V.  Brown,  28  Miss.  813:  279. 
V.  Bunn,  75  Mo.  559 :  558,  562. 
V.  Carmody,  137  Mass.  126 :  545. 
V.  Chadwick,   51  Me.    515 :    305, 

309.  729,  882. 
V.  Chase,  71  Me.  164 :  804 
V.  Chenault,  48  Tex.  455:  118. 
V.  Dauel,  29  111.  App.  290 :  854 
V.  Dean,  15  Neb.  432 :  397. 

Deschaumes,  37  Tex.  429 :  138. 
Eaton,  50  la.  488 :  590. 
Echels,  65  Ga.  326 :  811,  848. 
Emerson,  43  Pa.  St  456 :  536, 

919. 
Enos,  91  Mo.  579:  171,  290. 
Ewing,  11  Saw.  56:  940. 
Ezell.  51  Ga.  570:  64  279,  687. 
V.  Fellows,  58  Ala.  467 :  870,  885. 
V.  Gibbs,  6  Gray,  298 :  802. 
V.  Gore,  23  Kas.  488 :  444 
V.  Grant.  15  S.  C.  150  :  450. 
V.  Harris,  76  lud.  104 :  906. 
V.  Head  ley,  33  Mmu.  384:   365. 
V.  High,  85  N.  C.  93 :  334 
V.  Hill  (la.),  49  N.  W.  1043 :  838. 
V.  Hill,  22  Barb.  656 :  779,  858. 


Smith  V.  HoUis,  46  Ark.  23 :  953. 
V.  Hunt,  68  N.  C.  482 :  855. 
Johnson,  71  Ga.  748 :  825. 
Kerr,  2  Dill.  50 :  516.  535. 
Lackor,  23  Minn.  454 :  362, 377. 
Mallone,  10  S.  C.  40:  451,  550. 
Marc,  26  111.  150:  41,  294  373, 

421,  550,  552. 
McDonald,  95  N.  C.  163 :  640. 
McGinty,  101  Pa.  St.  402 :  825. 
Miller,  31  111.  157 :  44,  329,  405.  . 

406,  422,  556. 
Omans,    17  Wis.   395:  10,   18, 

324  761. 
Pearce,  85  Ala.  264 :  429,  578. 
Poiter,  10  Gray,  66 :  385,  425. 
Provin,  4  Allen,  516:  258. 
Quiggans,  65  la.  637 :  184  188, 
232. 
V.  Ragsdale,  36  Ark.  297  :  10,  323, 

881. 
V.  Roberts,  61  Ga.  223 :  142. 
V.  Rogers,  16  Ga  479:  795. 
V.  Rumsey,   33    Mich.    183 :   420, 

472,  514,  516,  519,  730. 
V.  Scherck,    60    Miss.   491 :    348, 

376,  380. 
V.  Shepherd,  63  Ga  454 :  544  548. 
V.  Shrieves,  13  Nev.  303 :  170,  171, 

238. 
V.  Sills,  126  Ind.  205 :  829. 
V.  Slade,  57  Barb.  041 :  765,  776, 

785,  806. 
V.  Smith,  12  Cal.  223:  112. 
V.  Steele,  13  Neb.  1 :  952. 
V.  Stewart,  13  Nev.  70 :  170,  212, 

235. 
V.  Turnley,  44  Ga.  243 :  814 
V.  Uzzell,  56  Tex.  315 :  559,  570, 

596,  601. 
V.  Van  Hutton,  75  Tex.  625 :  81, 

381,  597. 
V.  Whittle,  50  Ga  626 :  41,  294, 

355. 
V.  W^ood.  83  Ind.  522 :  323,  759. 
V.  Zuckmeyer,  53  la  14 :  593,  622. 
Smith's  Estate,  51  Cal.  564 :  627. 
Smith's  Ex'r  v.  Cockrell,  66  Ala  64 : 
515. 


Ixxxii 


TABLE    OF    OA8E8. 


Smothers  v.  Holly,  47  111.  331 :  865. 
Smythe  v.  Fiske.  23  Wall.  374 :  838. 

V.  Kane,  42  Mo.  App.  253 :  781. 
Snapp  V.  Suapp,  87  Ky.  554 :  189,  667. 
Snedecor  v.  Freeman,  71  Ala.  140 :  138. 
Sneed    v.    Commonwealth,   6    Dana, 

339:  25. 
V.  Jenkins,  90  Tenn.  137  :  790. 
Sneider  v.  Heldelberger,  45  Ala.  126 : 

41,  280. 
Snell  V.  Pahner,  12  Bradw.  337:  426. 
Snider  v.  Martin,  55  Ark.  139 :  730, 

734. 
Snodgrass  v.  Parks,  79  Cal.  55 :  107, 

357. 
V.  Snodgrass,  40  Kas.  494:  69. 
Snook  V.  Suetzer,  25  O.  St.  516 :  888, 

890,  892. 
Snyder  v.  People,  26  Mich.  110:  46, 

352,  472,  546. 
V.  Snyder,  3  Barb.  621 :  41. 
Solary  v.  Hewlett,  18  Fla.  756 :   192. 

195. 
Solomons  v.  Shaw,  25  S  C.  112:  280. 
Somers  v.  Emerson,  58  N.  H.  48 :  808, 

919. 
Sontag   V.   Schmisseur,   76   111.    541 : 

605,  626. 
Sorrels  v.  Self,  43  Ark.  451 :  926,  951. 
Sossaman   v.   Powell,    21    Tex.   665: 

459,  597,  603,  640,  652. 
Soulier  v.  Sheriff,  37  La.  Ann.  162 : 

145. 
Southerland  v.  Whittington,  46  Ark. 

285:  949. 
South  Minnesota,  etc.  v.  Gallipean,  3 

Land  Dec.  166 :  940. 
Southwickv.  Davis,  78  Cal.  504:  31. 
Souverbye  v.  Arden,   1   Johns.    Ch. 

255:  379. 
Spafiford  v.  Warren,  47  la.  47 :  427. 
Sparger  v.  Campton,  54  Ga.  185 :  21, 

333. 
Sparrow  v.  Strong,  3  Wall.  97 :  949. 
Spangler  v.  Kaufman,  43  Mo.  App. 

5:  772. 
Spaulding  v.  Crane,  46  Vt.  292 :  6,  26, 

182,  187,  189,  192. 
V.  Warner,  59  Vt.  646 :  519,  712. 


Spaulding's  Appeal,  52  N.  H.    330: 

262,  625,  657. 
Spear  v.  Evans,  51  Wis.  42 :  362,  410. 
Speidel  v.  Schlosser,  13  W.  Va.  686 : 

103,  293,  547,  642. 
Spelman  v.  Aldrich,  126  Mass.  117 : 

840. 
Spencer  v.   Blaisdell,   4  N.  H.    198: 

309. 
V.  Fredendall,   15  Wis.  666:  377, 

426. 
V.  Geissman,  37  Cal.  99:  104,  113, 

117. 
Spengler  v.  Kaufman,  46  Mo.  App. 

644 :  826,  923. 
Spier's  Appeal,  26  Pa.  St.  234 :  789. 
Spiess  V.  Neuberg,  71  Wis.  279 :  950. 
Spikes  V.  Burgess,  65  Wis.  428 :  804 
Spiro  V.  Paxton,  3  Lea.  75 :  137,  904. 
Spitley  V.  Frost,  15  Fed.  299 :  20,  225, 

687.  730,  742. 
Sponger  v.  Compton,  54  Gai  355 :  912. 
Spoon  V.  Reid,  78  N.  C.  244 :  157,  676. 
V.  Van  Fossen,  53  la.   494 :  123, 

422. 
Spooner  v.  Fletcher,  3  Vt.  133 :  802, 

859. 
Sprague  v.  Birdsall,  2  Cow.  419:  38. 

V.  Brown,  40  Wis.  612:  863. 
Springer  v.  Lewis,  22  Pa.  St.  191 :  8ia 
Sproul  V.  Atchison  N.  Bank,  22  Kas. 

330:  514. 
Squire  v.  Mudgett,  61  N.  H.  149:  11, 

117,  279,  625. 
Stack  V.  Bare.  39  Kas.  100 :  889. 
Stafford  v.  Elliott,  59  Ga.  838:  544, 

548. 
Stnhl  V.  Stahl,  114111.  375:  73. 
Stallings   v.  Read,  94   Ind.  103 :  765, 

776,  862. 
Stamm  v.  Stamm,  11  Mo.  App.  598: 

69. 
Staniels  v.  Raymond,  4  Cush.  314 :  880. 
Stanley  v.  Baker,  75  Mo.  60 :  291. 
V.  Elnman,  83  Ala.  215 :  556. 
V.  Greenwood,  24  Tex.  225 :  223. 
V.  Snyder,  43   Ark.  429 :  66,   94, 

95,  96,  514,  580,  590,  865. 
V.  Sullivan.  71  Wis.  585 :  745. 


TABLE   OF   CASES. 


Ixxxiii 


•Stansell  v.  Roberts,  13  Ohio,  148 :  339. 
Stanton  v.  French,  83  Cal.  194 :  776, 
805,  811. 
V.  Hitchcock,  64  Mich.   316 :  81, 

420,  582. 
V.  McMullen,  7  111.  App.  326 :  854, 
863. 
Staples  V.  Keister,  81  Ga.  772 :  241. 

V.  Staples,  4  Me.  532 :  824. 
Stark  V.  Bare,  39  Kas.  100 :  892. 

V.  Starrs,  6  Wall.  402 :  953. 
Starnes  v.  Allen,  58  Ala.  316 :  815. 
State  V.  Atkins,  53  Ark.  303 :  723. 
V.  Barada,  57  Mo.  562 :  780,  782. 
V.  Batchekler,  5  Minn.  178:  940. 
V.  Boulden,  57  Md.  318 :  764,  778, 

785. 
V.  Bowden,  18  Fla.  17 :  904. 
V.  Burnett,  6  Heisk.  186 :  27. 
V.  Carroll,  9  Mo.  App.  275 :   782, 

874. 
V.  Chaney,  36  Mo.  App.  513 :  877. 
V.  Clark,  54  Mo.  17,  36 :  25. 
V.  Cobb,  4  Lea,  481 :  916. 
V.  Com'rs,  34  Wis.  162 :  32. 
V.  Conner,  73  Mo.  572 :  869. 
V.  Cunningham,  6  Neb.  90 :  786. 
V.  Davis,  46  Mo.  108 :  290,  291. 
V.  Day  (Ind,  App.),  29  N.  E.  436 : 

906,  909. 
V.  Dittmar,  120  Ind.  54:  890,  891. 
V.  Diveling,  66  Mo.  375:  116,  288, 

289.  515,  53.5,  668. 
V.  Emmersou,  74  Mo.  607 :   666, 

778,  782,  871. 
V.  Finn,  8  Mo.  App.  264 :  80,  561, 

783.  878. 
V.  Geddis,  44  la.  539 :  285,  439. 
V.  Haggard,  20  Tenn.  390 :  780. 
V.  Hallett,  8  Ala.  159 :  564. 
V.  Harper,  120  Ind.  23:  781,  849. 
V.  Harrington,  33  Mo.  App.  476 : 

850,  890. 
V.  Heman,  70  Mo.  441 :  25. 
V.  Houck  (Neb.),  49  N.  W.  462 : 

771. 
V.  Kane,  42  III  App.  42 :  59,  80, 

773,  780. 
V.  Kinne,  41N.  H.  238:  14.  I 


State  V.  Koch,  40  Mo.  App.  635 :  920. 
V.  Km  m  pus,  13  Neb.  321 :  884. 
V.  Kurtzborn,   2  Mo.  App.  337 : 

774,  782,  850. 
V.  Manly,  15  Ind.  8 :  305,  729. 882. 
V.  Mason,  88  Mo.  228:  119,  373, 

671,  672,  913. 
V.  Mcintosh,  100  Ind.  439 :  760. 
V.  Melogue,  9  Ind.  196 :  229,  324, 

667,  866. 
V.  Moore,  19  Mo.  371 :  671. 
V.  Orahood,  27  Mo.  App.  496 :  911. 
V.  Pitts,  51  Mo.  133 :  14,  327. 
V.  Powell,  44  Mo.  438 :  671. 
V.  Read,  94  Ind.   103 :    773,  853, 

905. 
V.  Reitz,  62  Ind.  159 :  27. 
V.  Romer,  44  Mo.  99 :  780. 
V.  Sanford,  12  Neb.  425  :  884. 
V.  Shacklett,  37  Mo.  284 :  671. 
V.  Spaude,  37  Minn.  322 :  27. 
V.  Spencer,  64  Mo.  ^55:  144,  904, 
V.  Springer,   45    Mo.    App.    252 : 

746. 
V.  Stewart,  89  N.  C.  563 :  540. 
V.  The  Judges,  etc.,  37  La.  Ann. 

109:  39,594. 
V.  Thompson,   10  La.   Ann.  122 : 

52. 
V.  Turnpike  Co.,  16  O.  St.  308 :  32. 
V.  Wilcox,  45  Mo.  458 :  27. 
V.  Williford,  36  Ark.  155  :  881. 
V.  Wilson,  31  Neb.  462:  611,  774, 
786,  884. 
State   Bank  v.   Carson,  4  Neb.  502: 

136,  296,  687,  742,  878. 
State  Savings   Bank    v.   Harbin,  18 
S.  C.   425 :  403,  413,  716,  717. 
Stayton  v.  Halpern,  50  Ark.  329 :  298. 

493,  706. 
Stebbius  v.  Puler,  29  Vt.  289 :  445. 
Steel  V.  Smelting  Co.,  106  U.  S.  447: 

941. 
Steele  v.  Leonori,  28  Mo.  App.  675, 
682:  774. 
V.  Lyford,  59  Vt.  230 :  809. 
Steen  v.  Hamblet,  66  Miss.  112:  771. 
Steenbergen  v.  Gowdy  (Ky.),  19  S.  W. 
186:  363. 


Ixxxiv 


TABLE    OF    CASES. 


Stein   V.   Burnett,  43  Mo.  App.  477 : 

877. 
Stephens  v.  Hume,  25  Mo.  349:  121. 
603. 
V.  Lawson,  7   Blatchf.  275 :  862. 
V.  Montgomery,  74  Ga.  832 :  103. 
V.  Smith,  62  Ga.  177 :  341. 
Stephenson  v.  Eberhart,  79  Ga.  116: 

85,  488,  526. 
Stevens  v.  Carson,  27  Neb.  501 :  884, 
918. 
V.  Castel.  63  Mich.  Ill :  396. 
V.  Hollingsworth,  74  III.  202 :  158, 

730. 
V.  Home,  62  Mo.  473 :  288. 
V.  Myers,  11  la.  183:  727,755. 
V.  Stevens,    10    Allen,    146 :    355, 
465,  4G6,  590,  593. 
Stevenson  v.  Jackson,  40  Mich.  702 : 
173,  852,  420,  472. 
v.  Marony,  29  111.'  532 :  357,  683. 
V.  Moody,  85   Ala.  33 :  165,  749, 

866. 
V.  Osborne,  41  Miss.  119:  41,  280, 

767. 
V.  White,  5  Allen,  148 :  536. 
Stewart  v.  Brand,  23  la.  477  :  85, 466, 
572,  590,  591. 
V.  Brown.  37  N.  Y.  350 :  144,  874, 

904,  905,  909. 
V.  Croes,  10  111.  442 :  727. 
V.  Mackey,   16  Tex.    56 :    84,  96, 
295,  297,   387,   399,  421,  550, 
568,  655. 
V.  Ehoades.  39  Minn.  193 :  566. 
V.  Stewart,  27  W.  Va.  177 :  103. 
V.  Stisher,  83  Ga.  297-9 :  418, 553, 

745. 
V.  Sutherland  (Cal.),  28  P.  947 : 

953. 
V.  Welton,  32  Mich.  56 :  801,  812. 
Stiles  V.  Brown,  16  Vt.  565 :  385,  425. 
Stillson  V.  Gibbs,  46  Mich.  215 :  779, 

817,  864. 
Stinde  v.  Behrens,  81  Mo.  254:  289, 

531. 
Stinson  v.  Richardson,  44  la.  373-5 : 

117,  118,  395,  427,  576. 
Stith  v.  Lookabill,  76  N.  C.  465 :  820. 


Stockton  v.  Knock,  73  Cal.  425  :  70. 
Stockwell  V.  Bank.  36  Hun,  583:  840. 

V.  Thomas^,  76  Ind.  506:  915. 
Stoinski  v.  Pulte,  77  Mich.  322 :  684. 
Stokes   V.  Amerman,   55  Hun,   178: 

836. 
V.  Georgia.  46  Ga.  412  :  329. 
Stone  V.  Darnell,  20  Tex.  14 :  174,  304, 

355,  357. 
V.  McCann,  79  Cal.  460:  671. 
V.  Spencer,  77  Mo.  356 :  769. 
Stoops  V.  Woods.  45  Cal.  439 :  608. 
Story  V.  Marshall,  24  Tex.  305 :  397. 

V.  Walker,  11  Lea,  515:  798. 
Stotesbury  v.  Keitland,  35  Mo.  App. 

157 :  769,  920,  923. 
Stout  V.  McNeill,  98  N.  C.  1 :  144. 
V.  Rapp,   17  Neb.  462,  470:   398, 

739. 
Stovall  V.  Fowler,  72  Ala.  77 :  427. 
Stow  V.  Lillie,  63  Ala.  259:  572,  575. 
Stowe  V.  Wyse.  7  Ct.  214:  392. 
Straat   v.  Rinkle,   16  Mo.  App.   115: 

668,  669,  670. 
Straclm  v.  Foss,  42  N.  H.  43 :  261,  346, 

392. 
Strange  v.  Strange,  76  Va.  240:  54. 

557. 
Strann  v.  Norris,  21  Ark.  80 :  525. 
Stratton  v.  McCandliss,  32  Kas.  512 : 

444. 
V.  Perry,  2   Tenn.  Ch.  633:  346. 
Straus  V.  Rothan,  102  Mo.  261 :  910. 
V.  Sole  Leather  Co.  (Mo.),  14  S.  W. 

913.  940. 
Strauss  v.  Harrison,  79  Ala.  324 :  393, 

428. 
Streeter  v.  Rolf,  13  Neb.  388 :  940. 
Strieker  v.  Kubusky,  35  111.  App.  159 : 

848. 
Striker  v.  Kelly,  2  Denio,  323 :  41. 
Stringer  v.  Swenson,  63  Tex.  7 :  571. 
Stringfellow   v.  Sorrels  (Tex.),  18  S. 

W.  689 :  629. 
Striplm  v.  Cooper,  80  Ala.  256 :  577, 

579. 
Strohecker  v.  Irvine,  76  Ga.  639 :  366. 
Strong  V.  Clem,  12  Ind.  37 :  449. 
V.  Waddell,  56  Ala.  471 :  357. 


TABLE   OF   OASES. 


IXXXT 


Strouse  v.  Becker,  38  Pa.  St  190 :  536, 

835.  882,  917. 
Struble  V.  Nodwift,   11  Ind.  64:  751. 
Stubblefield  v.  Graves,    50     111.    103 : 

216,  217,  495,  671. 
Stuckey  v.  Keefe's  Ex'rs,   26  Pa.  St. 
397  :  142,  143. 
V.  McGibbou,   92   Ala.    622 :   761. 
914. 
Stults  V.  Sale   (Ky.),  17  N.  W.  148: 

7,  86. 
Stunz  V.  Stunz,  131  111.  210 :  621,  636. 
Sturgis  V.  Evving.  18  111.  176:  449. 
Succession  of  Cason,  32  La.  Ann.  790 : 
595. 
Cooley,  20  La.  Ann.  166 :  636. 
Cottingham,  29   La.    Ann.    669: 

516,  636. 
Drum,  26  La.  Ann.  539 :  636. 
Durkin,  30  La.  Ann.  669  :  595. 
Edwards,  32  La.  Ann.  457 :  594. 
Foulkes,  12  La.  Ann.  537 :  41. 
Furniss,  34   La.    Ann.    1013:  39, 

169,  172,  174. 
Hunter,  13  La.    Ann.   257:  457, 

460,  621,  789. 
Lessassier,    34    La.    Ann.    1066 : 

594. 
Marc,  29  La.  Ann.  41 :  636. 
Marx,  27  La.  Ann.  99 :  594. 
Melangon,  25  La.  Ann.  535 :  655. 
Norton,  18  La.  Ann.  38 :  594.  655. 
Robertson,  28  La.  Ann.  832 :  636, 

655. 
Tassin.  12  La.  Ann.  885 :  635,  789. 
Taylor,  10  La.  Ann,  509 :  41. 
Wellmeyer,   34    La.    Ann.   819: 
594. 
Sugg  V.  Tillman,  2  Swan,  208 :  535. 
Sullings  V.  Richmond,  5  Allen,  187 : 

545. 
Sullivan  v.  Davis,  4  Cal.  291 :  607. 
V.  Hendrickson,  54  Cal.  258 :  306, 

744. 
V.  Lafayette  County,  61  Miss.  271 : 

729. 
V.  Winslow,  22  Ind.  153 :  915. 
Sulzberger  v.  Sulzberger,  50  CaL  385  : 
763. 


Sumner  v.  McCray,  60  Mo.  493:  515. 
V.  Sawtelle,    8    Minn.   272:    221, 

232. 
Sunbolf  v.  Alford,  3  M.  &  W.  248: 

795. 
Supervisors  v.  People,  7  Hill,  513 :  26. 
Supreme  Council  v.  Perry,  140  Mass. 

.580:  705. 
Surratt  v.  Young,  55  Ark.  447 :  883, 

886. 
Sutherland  v.  Tyner,  72  la.  232:  714. 
Sutton  V.  Aiken,  62  Ga.  741 :  391. 

V.  Askew,  66  N.  C.  172 :  79,  493. 
Swan  v.  Stephens,  99  Mass.  7:  258. 

616.  686,  715. 
Swandale  v.  Swandale,  25  S.  C.  389 : 

157.  652,  829. 
Swauey  v.   Hutchins,    13    Neb.  266: 

786. 
Swart  v.  Kimball,  43  Mich.  448 :  540. 
Swartz  V.  McClelland  (Neb.),  48  N.  W. 

461:  604. 
Swearingen  v.  Bassett,  65  Tex.  273-4 : 

30,  36,  252. 
Sweeny  v.  Hunter,  145  Pa.  St.  363 : 

890. 
V.  Ross  (Ky.),  15  S.  W.  357 :  75. 
Swenson  v.  Halberg,  1  Fed.  444 :  417. 

V.  Kiehl,  21  Kas.  533:  181,  194. 
Swift  V.  Dewey,  20  Neb.  107  :  47,  396. 
Swope  V.  Ross,  29  Ark.  370:  817. 

V.  Stanzenberger,   59   Tex.    390: 

196.  399. 
Syme  v.  Riddle,  88  N.  C.  463 :  124. 
Symmes  v.  Drew,  21  Pick.  278 :    143. 
Symonds  v.  Lappin,  82  111.  213 :  407, 

555,  675,  699,  751. 

T. 

Tadlock  v.  Eccles.  20  Tex.  790 :  309, 

532,  645,  744,  747. 
Taff  ts  V.  Manlove,  14  Cal.  47 :  729. 
Talbot  V.  Barager,  37  Mmn.  208  :  675. 
Talifero  v.    Rawlton,   34  Ark.    503: 

525. 
Talmadge  v.  Talmadge,  66  Ala.  199 : 

564. 
Tannahill  v.  Tuttle,  3  Mich.  104:  861. 


Ixxxvi 


TABLE    OF   CASES. 


Tanner  v.  Billings,  18  Wis.  175:  793. 

V.  Thomas,  71  Ala.  233:  700. 
Tant  V.  Tulbot,  81  Ky.  23 :  189. 
Tappan  v.  Hunt,  74  Ga.  545 :  551. 
Tarpley   v.   Tarpley,    10    Minn.  458: 

391. 
Tarrant  v.  Swain,    15  Kas.  146 :  138, 

149,  181,  515. 
Tasken  V.  Sheldon,    115  Pa.   St.  107: 

866. 
Tate  V.  Goff  (Ga.),  15  S.  E.  30 :  655. 
V.  Laforest,  25  La.  Ann.  187 :  10, 
323. 
Taylor  v.  Baker,  1  Fla.  245 :  948. 

V.  Beachy,  14  111.  App.  259 :  854, 

862. 
V.  Boulvvare,  17  Tex.    74 :  58,  81, 

85,  94,  224,  563. 
V.  Chandler,  9  Heisk.  349 :  27. 
V.  Cox,  1  B.  Mon.  429 :  135. 
V.  Duesterberg,  109  Ind.  165  :  831. 
V.  Hargous,  4  Cal.  272 :  212,  385, 

564,  577,  601. 
V.  Huck,  65  Tex.  238 :  362. 
V.  McElvin,  31  La.  Ann.  283 :  59. 
V.  Pettus,  52  Ala.  287 :  20,  637. 
V.  Rhyne,  65  N.  C.  531 :  730. 
V.  Rice  (N.  D.),  44  N.  W.    1017 : 

874 
V.  Saloy,  38  La.  Ann.  62 :  11,  170, 

172. 
V.  Smith,  54  Miss.  50 :  96,  97. 
V.  Taylor,  53  Ala.  135 :  20,  637. 
V.  Thorn,  29  O.  St.  569 :  494,  660. 
Teager  v,  Landsley,  69  la.  725 :  890. 
Tedder  v.  Steele,  70  Ala.  347 :  553. 
Temple  v.  Freed,  21  111.  App.  238 :  771. 
V.  Scott,  3  Minn.   419 :   445,  833, 
864. 
Tennent  v.  Pruitt,  94    Mo.   145:  11, 

170,  171. 
Tennessee  v.  Sneed,  96  U.  S.  69 :  678. 
Tenney  v.  Sly,  44  Ind.  269 :  290. 
Terrell  v.   Hurst,   76   Ala.   588:  557, 
870,  885. 
V.  Martin.  64  Tex.  121 :  135. 
Terry  v.  Berry,  13  Nev.  515 :  135, 143, 
905. 
V.  Terry,  39  Tex.  313 :  403,  647. 


Terry's  Appeal,  55  Pa.  St.  344 :  789. 
Tex.  etc.  R.  Co.  v.  Levi,  59  Tex.  674 : 

649. 
Tharp  v.   Allen,  46  Mich.  389:  131, 

134,  138,  141. 
Thatcher  v.  Howland,  2  Met.  45 :  146. 
Thaxton  v.  Roberts,  66  Ga.  704 :  119. 
Thayer  v.  South  wick,  8  Gray,  229: 
914. 
V.  Thayer,  14  Vt.  118:  424. 
The  Collector  v.  Day,  11  Wall.  113: 

13. 
The  Homestead  Cases,  22  Gratt  266 : 

41,  279. 
The  J.  I.  Case  Co.  v.  Joyce,  89  Teun. 

337:  6. 
The  King  v.  Beeston,  3  Term  R.  594, 

595:  31. 
The  Secretary  v.  McGarrahan.  9  Wall. 

298:  941. 
The  Six   Carpenters'   Case,  8  Coke, 

290:  860. 
Thimes  v.  Stumpff,  33  Kas.  53 :  386, 

534. 
Thomas  v.  Dodge,  8  Mich.  51 :  169. 
V.  Guilbeau,  35  La.  Ann.  927 :  39, 

173. 
V.  Mueller,  106  111.  36 :  398. 
V.  Thomas,  73  la.  657 :    464,  466, 

593,  623. 
V.  Williams,  50  Tex.  269 :  563. 
Thomas'  Appeal,  69  Pa.  St.  121 :  873. 
Thomasou  v.  Ashworth,  73  Cal.  73 :  27. 

V.  Fannin,  54  Ga.  361 :  554. 
Thompson   v.  Alexander,  11  Heisk. 
313:  787. 
V.  Allen,  103  Pa.  St.  44 :  396. 
V,  Cragg,  24  Tex.  597  :  596. 
V.  Jones,  60  Tex.  94 :  399,  415. 
V.  King,  54  Ark.  9 :    63,  138,  321. 

605. 
V.  Neely,  50  Miss.  210 :  535. 
V.  Ogle  (Ark.),  17  S.  W.  593:  787. 
V.  Pickel,  20  la.  490 :  377,  692. 
V.  Rogers,  51  la.  333 :  438. 
V.  Ross,  87  Ind.  156 :  10,  333,  759, 

916. 
V.  Sheppard,   85    Ala.    611,   619: 
357,  416,  431,  500.  553. 


TABLE   OF   CASES. 


Ixxxvh 


Thompson  v,  Tliompson,  51  Ala.  493 : 
627,  788. 
V.  Tillotson,  56  Miss.  36 :  568. 
V.  Wickersham,  9  Bax.  216:  317. 
Thorns  v.  Thorns,  45  Miss.  272 :  687, 

688. 
Thorn  v.  Darlington,   6  Bush,   448: 
686. 
V.  Dill,  56  Tex.  145 :  340. 
V.  Thorn,  14  la.  49:  141,  219. 
Thorndike  v.  Norris,  24  N.  H.   454 : 

892. 
Thornton  v.  Boyden,  31  III.  200:  329, 
422. 
V.  Murray,  50  Tex.  161 :  597. 
V.  Thornton,  45  Ala.  274 :  615. 
V.  Vanstory,  107  N.  C.  331 :  673, 
677. 
Threat  v.  Moody,  87  Tenn.  143 :  20. 
Thredgill  v.  Pintard,  12  How.  24:  949. 
Threshing  Machine  Co.   v.  Mitchell, 
74  Midi.  679:  118,   119,    137, 
403. 
Thrift  V.  Delaney  (Cal.),  10  Pac.  475 : 

933,  947. 
Thurlow  V.  Warren,  82  Me.  164 :  903. 
Thurston  v.  Maddox,   6   Allen,   427: 

135,  136,  355,  404. 
Tidd  V.  Quinn,  52  N.  H.  341 :  261,  592, 

657,  729. 
Tiebout  v.  Mellican,  61  Tex.  514:  636. 
Tiernan  v.  His  Creditors,  62  Cal.  286 : 

147,  186,  212,  235. 
Tift  V.  Newsom,  44  Ga.  600 :  341,  361. 
Tilden  v.  Crimmius,  60  Vt.  546:  418. 
Tilford  V.  Torrey,  53  Ala.  120 :  339. 
Tillman  v.  Brown.  64  Tex.  181 :  854. 
Tillotson  V.  Millard,  7  Minn.  513  :  41, 
181,  231,  232,  566. 
V.  Walcott,   48  N.  Y.    188 :   445, 
836,  864. 
Tilton  V.  Sanborn,  59  N.  H.  290:  919. 
V.  Vignes,  33  La.  Ann.  240 :   39. 
178. 
Timothy  v.  Chambers,   85  Ga.  267: 

703. 
Tingley  v.  Bateman,   10  Mass.    343: 
893. 
V.  Gregory,  30  Neb.  196 :  217,  728. 


Tipton  V.  Martin,  71  Cal.  325:  31,  560. 
Tirrel  v.  Kenney,  137  Mass.  30 :  545. 
Titman  v.  Moore,  43  111.  169 :  121. 180, 

561,  568,  582,  586. 
Tladung  v.  Rose,  58  Md.  13:  143. 
Todd  V.  Lee,  16  Wis.  480:  530. 

V.  McCravey,  77  Ala.   468 :   878, 

879,  883. 
V.  Railroad,  33  Mo.  App.  110 :  889. 
Toenes  v.  Moog,  78  Ala.  558 :  637,  665. 
Tolman  v.  Leathers,  1  McCrary,  329 : 

426,  430,  528. 
Tomlin  V.  Hilyard,  43  111.  300:    117, 

265. 
Tompkins  v.  Weeks,  26  Cal.  58 :  27a 
Tompkins'  Estate,  12  Cal.  114:  493. 
Toms  Y.  Fite,  93  N.  C.  274 :  333. 
V.  Logan,  93  N.  C.  276 :  333. 
Tong  V.  Eifort,  80  Ky.  152:  377,  379. 
Tonsmere  v.  Buckland,  88  Ala.  312: 

848. 
Tootle  V.  Stine,  31  Kas.  66 :  525. 
Torrance  v.  Boyd,  63  Ga.  22 :  78,  606. 

701. 
Totten  V.  Sale,  72  Ala.  488 :  880. 
Tourville  v.  Pierson,  39  111.  446 :  179, 

304,  398. 
Town  V.   Elmore,  38  Mich.  305 :  779. 
Towns  V.  Pratt,  33  N.  H.  345  :  795. 
Townsend   v.   Brown,   16  S.   C.   06: 

124. 
V.  Cowles,  31  Ala.  428 :  391. 
V.  Fenton.  80  Minn.  528 :  953. 
Tracy  v.  Cover,   28  O.   St.   61 :  530, 

918. 
Trager  v.   Feebleman  (Ala.).  10  So. 

213:  850,  851.  886,  917. 
Trammel  v.  Roberts,  55  Ga.  383 :  525. 
Travis  v.  Davis  (Ky.),  15  S.  W.  525: 

286. 
Trawick  v.  Harris,  8  Tex.  312 :  67,  88, 

96,  290,  459,  568. 
Treadway  v.   Wilder,    12  Nev.    114: 

953. 
Tremble  v.  Herold,  20  W.  Va.  602 : 

103. 
Trenouth  v.  San  Francisco,  100  U.  S. 

251  :  135,  930,  933. 
Tribble  v.  Anderson,  63  Ga.  54-5 :  544. 


Ixxxviii 


TABLE   OF    CASES. 


Trickey  v.  Schlader,  52  111.  78 :  205. 
Trimble  V.  James,  40  Ark.  393:  619. 
Triplett  v.  Graham,  58  la.   135:  45, 

838. 
Trogden  v.  Safford,  21  111.  App.  240 : 

551. 
Tromaus  v.  Mahlman  (Cal.),  27  Pac. 

1094 :  182,  569. 
Trotter  v.  Dobbs,  38   Miss.    198 :  64, 

181.  281,  306,  525,  730,  744. 
V.  Trotter,  31  Ark.  145 :  656. 

Trowbridge  v.  Cross,    117   111.    109: 

265,  861,  906,  907. 
Truax  v.  Pool,  46  la.  256 :  155. 
True  V.  Morrill,  28  Vt.  674 :  31,  147, 

182,  192,  215. 

Trulock  V.  Taylor,  26  Ark.  54 :  940. 
Trustees  v.  Hovey,  94  111.   394 :  556, 

582. 
Tryon  v.  Mansir,  2  Allen  (Mass.),  219 : 

806,  875. 
Tucker  V.  Drake,  11   Allen,  145:  129, 
509. 
V.  Henderson,  63  Ala.  280 :  555. 
V.  Kenniston,  47  N.  H.  267 :  182, 

215,  668,  715,  727,  753. 

V.  Tucker,  108  N.  C.  235 :  330,  628. 

TuUis  V.  Orthwein.  5  Minn.  305 :  781. 

Tuuilinson  v.  Swinney,  22  Ark.  400 : 

37,  150,  195,  239,  297,  562,  563. 

Tunstall  v.  Jones,  25  Ark.  274 :  333, 

728. 
Turner  v.   Argo,  89  Tenn.   443:  63, 
508. 
V.Bennett,  70  111.  263:  265,  605, 

625. 
V.  Bernheimcr  (Ala.),  10  So.  750 : 

395. 
V.  Borthwick,  20  Hun,  119:  779. 
V.  Railroad  Co.,  19  Neb.  241 :  893. 
V.  Turner,  30  Miss.  428 :  461,  467. 
V.  Vaughan,   33  Ark.   454 :   532, 

651,  882. 
V.  Whitten,  40  Ala.  530 :  627. 
Turnipseed  v.   Fitzpatrick,    75  Ala. 

297 :  645,  696. 
Tuttle  V.  Buck,  41  Barb.  417:  865. 
V.  Howe,  14  Minn.  145,  152 :  15, 
294,  302,  304,  365,  366. 


Tuttle  V.  Turner,  28  Tex.  773 :  304. 
Twaddellv.   Rogers,    14  Phila.    163: 

882. 
Twinara  v.   Swart,   4  Lansing,   263: 

781. 
Twogood  V.  Stephens.  19  la.  412 :  724. 
Tyler  v.  Jewett,  82  Ala.  93,  99  :  05,  105, 

110,  115,  148,  158,  270,  579. 
V.  Johnson  (Kas.),  28  P.  198 :  362, 

717,  952. 
Type  Foundry  Co.  v.  Live  Stock,  etc. 

Co.,  74  Tex.  651 :  803. 
Tyrrell  v.  Baldwin,  78  CaL  470 :  600, 

708. 

u. 

Udell  V.  Howard,  28  111.  App.  124: 

782. 
Uhl  V.  May,  5  Neb.  157:  169. 
Ullman  v.  Jasper,  70  Tex.  446 :  398. 
Umland  v.  Holcombe,  26  Minn.  286 : 

181,  188,  213. 
Underwood  v.  Sutcliffe,  77  N.  Y.  58 : 

836. 
Union  Mill  Co.  v.  Dangberg,  2  Saw. 

450:  953. 
Union    Pacific    R.    Co.   v.   Kennedy 
(Col.),  20  P.  696 :  949. 
V.  Watts,  2  Dill.  310 :  944. 
United    States    v.    A     Distillery,    3 
Blatch.  192:  314. 
V.  Bedgood,  49  Fed.  54 :  937. 
V.  Curtner,  26  Fed.  296 :  931. 
V,  Fisher,  2  Cr.  358 :  24. 
V.  Gratiot,  14  Pet.  526 :  925. 
V.  Hall,  98  U.  S.  343 :  841. 
V.  Hartwell,  6  Wall.  395 :  25. 
V.  Hearing,  26  Fed.  744 :  935. 
V.  Herron,  20  Wall.  251 :  13. 
V.  Hewes,  Crabbe,  307 :  14. 
V.  Hoar,  2  Mason,  311 :  14. 
V.  Howell,  4  Hughes,  483 :  13. 
V.  Iron  Silver  Mining  Co.,  128  U. 

S.  673:  936. 
V.  Jones,  3  Wash.  209 :  25. 
V.  Knight,  14  Pet.  301 :  12. 
V.  Mmor,  114  U.  S.  234:  931,  937, 
941. 


TABLE    OF    CASKS. 


Ixxxix 


United  States  v.  Mo.  etc.  R  Co.,  141 
U.  S.  SoS :  942,  944. 
V.  Mullen,  7  Saw.  466 :  931. 
V.  Pratt,  18  Fed.  708 :  931. 
V.  Railroad  Co.,  17  Wall.  332 :  13. 
V.  Reed,  28  Fed.  482 :  930,  944. 
V.  Schurz,  102  U.  S.  378 :  941. 
V.  Stone,  2  Wall.  525  :  931. 
V.  The    Commissioner,   5    Wall. 

563:  941. 
V.  Thompson,  98  U.  S.  486 :  944. 
V.  Thompson,  93  TJ.  S.  586 :  12. 
V.  Throckmorton,  98  U.   S.    61 : 
^  937. 

V.  Williams  (Nov.),  30   Fed.  309 : 

930. 
V.  Wiltberger,   5  Wheat  95 :  25. 
United  States  Express  Co.  v.  Ellyson, 

28  la.  370 :  27. 
Upman  v.   Second  Ward   Bank,  15 
Wis.  449:  180,  198,  395,  562. 
Uppinghouse  v.  Mundel,  103  Ind.  238  : 

889. 
Uran  v.  Houdlette,  36  Me.  15 :  818. 
Utley  V.  Jones,  92  N.  C.  261 :  299. 

Y. 

Vail  V.  Knapp,  49  Barb.  299 :  892. 
Vanberg  v.  Owens  (Ga.),  14  S.  E.  562 : 

655. 
Van  Bogart  v.  Van  Bogart,  46  la.  359 : 

558. 
Van  Buren  v.  Loper,  29  Barb.  389 : 

787,  804,  805,  811. 
Vance  v.  Burbauk,  101  U.  S.  514 :  941. 
Vancleave  v.  Wilson,  73  Ala.  387 :  412, 

689. 
Vanderhorst  v.  Bacon,  38  Mich.  669 : 

792,  794. 
Vandervort's  Appeal,  43  Pa.  St.  462: 

646,  856. 
Vandiver  v.  Vandiver,  20  Kas.  501 : 

262,  462,  656. 
Van  Doran  v.  Marden,  48  la.  186 :  788. 
Van  Duzer  v.  Van  Duzer,  65  la.  625 : 

746. 
Van  Dyke  v.  Kilgo,  54  Ga.  551 :  142, 

606. 


Van  Horn  v.  McNeill,  79  Ga.  121 :  85, 

96,  98,  111,  488,  676,  739. 
Vannoy  v.  Haymore,  71   N.  C.  128 : 

'  730. 
Van  Ratcliff  v.  Call,  72  Tex.  491 :  196, 

301. 
Van  Reynegan  v.  Revalk,  8  Cal.  76 : 

608. 
Van  Sant  v.  Butler,  19  Neb.  351 :  941. 
Van  Sickler  v.  Jacobs,  14  Johns.  434  : 

792,  797,  865. 
Van  Sickles  v.  Town,  53  la.  259 :  422, 

423. 
Van  Slyke  v.  Barrett  (Tex.),  16  S.  W. 

902 :  248. 
Vanstory  v.  Thornton  (N.  C),  14  S.  E. 

637 :  147,  754. 
Van  Wick  v.  Seward,  18  Wend.  385- 

387 :  424. 
Van  Wickle  v.  Landry,  29  La,  Ann. 

330:    178,  373,  470,  530,  541, 

553,  554. 
Vanzant  v.  Vanzant,  23  111.  541 :   44, 

419,  621. 
Varner  v.  Carson,  59  Tex.  306 :  391. 
Varnum  v.  Abbott,  12  Mass.  474:  135. 
Vasey  v.  Trustees,  59   111.    188:  387, 

486,  567,  582. 
Vaughan  v.  Thompson,  17  111.  78 :  516, 

873,  918. 
Vaughn  v.  Powell,  65  Miss.  401 :  242. 

V.  Vaughn,  88  Tenn.  742 :  629. 
Veile  V.  Koch,  27  111.  129:  61. 
Veuable  v.  Wabash  Ry.  Co.  (Mo.),  19 

S.  W.  45:  619. 
Ventriss  v.  Collins,  28  La.  Ann.  783 : 

135,  136. 
Vermont  Bank    v.  Elliott,  53  Mich. 

256:  210. 
Victor  V.  Hartford   Ins.   Co.,    33  la. 

210:  914. 
Vincent,  Ex  parte,  26  Ala.  145:  26. 
Vincent  v.  State,  74  Ala.  274 :  10,  323, 

323,  913. 
V.  Vincent.  1  Heisk.  343:  20,  787. 
Vining  v.  Officers,  82  Ga.  222:  213, 

754. 
V.  Willis,  40  Kas.   609,  612 :  450, 

461. 


xc 


TABLE    OF    CASES. 


Visek  V.  Doolittle.  69  la.  602:  156. 
Vogelsong  v.  Beltzlioover,  59  Pa.  St. 

57:  783,  849. 
Vogler  V.  Montgomery,  54  Mo.  584 : 

113,   289,   515,   518,  535,   660, 

668,  670,  730,  754. 
Von  Hoffman  v.  Quiucy,  4  Wall.  552 : 

41. 

w. 

Wabash  R.  Co.  v.  Seifert,  41  Mo.  App. 

35:  889. 
Waddel  v.  Cook,  2  Hill,  47 :  860. 
Wade  V.  Jones,  20  Mo.  75 :  58,  59,  80, 
923. 
V.  Kalbfleisch,   58  N.  Y.  282 :  10, 

323. 
V,  Wade,  9  Bax.  612 :  35,  186, 189. 
V.  Weslow,  62  Ga.  562 :  241,  815. 
Wafford  v.  Gaines;  53  Ga.  485  :  346. 
Waggle  V.  Worthy,  74  Cal.  266 :  576. 
Wagnon  v.  Keenan,  77  Ala.  519:  557. 
Waite  V.  Fransiola,  90  Tenn.  191 :  783, 
832. 
V.  Mathews,  50  Mich.  893 :  909. 
Wakefield  v.  Fargo,  90  N.  Y.  213 :  824. 
Walcot  V.  Knight,  6  Mass.  418 :  258. 
Waldo  V.  Gray,  14  111.  184 :  784. 
Wales  V.  Coffin,  13  Allen,  213 :  143. 
Walker  v.  Bank,  7  Ark.  484 :  768. 
V.  Chicago,  56  111.  277 :  38. 
V.  Darst,  31  Tex.  682:  502,  671. 
V.  Doane,  108  111.  236 :  617. 
V.  Johnson,  64  Ga.  363 :  354. 
V.  Sherman,  20  Wend.  636 :  787. 
V.  Stone,  48  la.  92 :  932. 
V.  Thomason,  77  Ga.  682 :  78,  697. 
V.  Young,  37  Tex.  519 :  61,  603. 
Wallace  v.  Collins,  5  Ark.  41 :  7,  97, 
811. 
V.  Hall,  19  Ala.  367 :  588. 
V.  Harris,  32  Mich.  380 :  352,  405, 
420,  472,  583,  615.  676. 
Waller  v.  Harris,  20  Wend.  562 :  25, 

26. 
Wally  V.  Wally,  41  Miss.  648 :  788. 
Walsch   V.   Call,   32   Wis.    159:    188, 
815. 


Walsh  V.   McMenomy,  74  Cal.  856: 

366. 
Waltermire  v.  Westover,  14  N.  Y.  16 : 

768. 
Walters  v.  People,  18  111.  194 ;  S.  C, 
65  Am.  Dec.   730:  115,  146. 
148,  180,  216,  573,  586,  671. 
V.  Walters,  11  Ired.  145:  354. 
Ward  V.  Huhn,  16  Minn.  159:    135, 
136,  137,  221,  232,  905. 
V.  Mayfield,  41  Ark.  94 :   96,  97, 
138. 
Warden  v.  Reser,  38  Kas.  86 :  426. 
Warhmund  v.  Merritt,  60  Tex.   24: 

340. 
Wark  V.  Willard,  13  N.  H.  389 :  392. 
Warner  v.  Crosby,  89  111.  320 :  44,  266, 
556,  618. 
V.  Cummock,  37  la.  642 :  19,  284, 
761. 
Warrall  v.  Kern,  51  Mo.  150 :  427. 
Warren  v.  Doolittle,  5  Cow.  684 :  859. 
V.  Jones,  69  Tex.  462,  467 :  430. 
V.  Peterson  (Neb.),  49  N.  W.  703 : 

742. 
V.  Raymond,  17  S.  C.  178 :  450. 
V.  Van  Brunt,  19  Wall.  646 :  941, 

947. 
V.  Warren,  30  Vt.  530 :  347. 
Washburn  v.  Goodheart,  88  111.  229 : 

808,  815,  848,  873,  874. 
Washington  v.  Cartwright,    65  Ga. 

177:  913. 
Wassell  V.  Tunnah,  25  Ark.  103 :  31, 

115,  148,  224.  232. 
Water  Com'rs  v.  Brewster,  42  N.  J. 

L.  125:  25. 
Waterloo  Turnpike  Co.  v.  Cole,   51 

Cal.  381 :  486. 
Waterman   v.  Baldwin,  68   la.  255 : 

422,  484. 
Watertown  Ins.  Co.  v.  G.  etc.  Co.,  41 
Mich.  131 :  472. 
V.  Sewing  Machine  Co.,  41  Mich. 
131:  352. 
Watkins  v.  Blatschinski,  40  Wis.  347 : 
317,  435. 
V.  Davis,  61  Tex.  414 :  317,  443, 
63a 


TABLE    OF    CASES. 


XCl 


Watkins  v.  Lawton,  69  Ga.  671 :  554 
V.  Overby,  83  N.  C.  165 :  303,  480. 
Watson  V.  Doyle,  130  111.  415:  266, 
409. 
V.  His  Creditors,  58  Cal.  556 :  600. 
V.  Lederer,  11  Colo.  577:  812. 
V.  Mancill,  86  Ala.  600 :  427. 
V.  McKinnon,  73  Tex.  210 :  144, 

145. 
y.  Mercer,  8  Pet.  88 :  280. 
V.  Rainey,  69  Tex.  319:  596,  75.3. 
V.  Saxer,   102  III.    585 :  112,   265, 

438. 
V.  Simpson,  5  Ala.  233 :  19,  909. 
Watters  v.  The  People,  21  111.   178 : 

645. 
Watts  V.  Burnett,  56  Ala.  340 :  358. 
V.  Gorden,  65  Ala.  546:  105,  110, 

270,  430. 
V.  Leggett,  66  N.  C.  197 :  618,  646, 

647. 
V.  Miller,  76  Tex.  14 :  381,  597. 
Waugh  V.  Montgomery,  67  Ala.  573 : 

575. 
Wayman  v.  Southard,  10  Wheat.  1 :  13. 
Weaver  v.  Nugent,  72  Tex.  272 :  562. 
Weaver's  Appeal,  18  Pa.  St.  307 :  778, 

788. 
Weaver's  Estate,  25  Pa.  St.  434 :  346. 
Webb  v.  Baird,  6  lud.  13:  38. 
V.  Boyle,  63  N.  C.  271  :  300. 
V.  Burney,  70  Tex.  322 :  432. 
V.  Cowley,  5  Lea,  722 :  93,  94. 
V.  Davis,  37  Ark.  551 :  718. 
v.  Holt,  57  la  716 :  841. 
Weber  v.  Weber,  47  Mich.  569 :  45. 
Webster  v.    Bowman,  25   Fed.  889: 
950. 
V.  Bronston,  5  Bush,  522 :  722. 
v.  Orna,  45  Vt.  40  :  220. 
Wedel  V.  Herman,  59  Cal.  513 :    164, 

170. 
Week    V.  Bos  worth,  61  Wis.  78 :  85, 

953. 
Weeks  v.  White,  41  Kas.  569 :  947. 

Wehrle  v.   Wehrle,  39  Ohio  St  365 : 
298. 

Weigeman   v.    Marsot,  13   Mo.    App. 

576 :  17,  374,  376,  484. 


Weiner  v.    Sterling,  61   Ala.  98:  65, 

146,  428. 
Weinrich  v.    Koelling,  21  Mo.  App. 

133 :  770,  920. 
Weis  V.  Levy,  69  Ala.  209 :  793,  852, 

856,  874,  917. 
Weisbrod    v.    Daenicke,  36  Wis.  73 : 

7,  30,  180. 
Weisman  v.   Weisman,  133  Pa.   St 

89:  826. 
Welborne  v.    Downing,  73  Tex.  527: 

562. 
Welch  V.  Rice,  31  Tex.  689 :  581,  750. 
Weller  v.  Moore,  50  Ark.  253 :  856. 
V.  Weller,  131  Mass.  446 :  35,  143, 

144,  260,  616,  905. 
Wells  V.  Barnett  7  Tex.  584 :  185. 

V.  Lily,  86  111.  317:  913. 
Welsh  V.   Welsh,  41    La.  Ann.   717: 

460,  636,  676. 
Werkheiser  v.  Werkheiser,  3  Rawle, 

326:  165. 
West  V.  Bennett  59  Ga.  507:  122. 
V.  Ward,  26  Wis.  579 :  135,  136. 

905. 
Westbrook    v.    Jeffers,   33  Tex.   86: 

423. 
West  River  Bank  v.  Gale,  42  Vt  27 : 

185,   192,  232,  291,  572,   615, 

617,  743. 
Weston   V.   Charleston,  2  Pet   449: 

13. 
V.  Weston  (Wis.),  49  N.  W.  834 : 

691. 
Wetherly  v.  Straus,  93  Cal.  283 :  713. 
Wetumpka  v.  Winter,  29  Ala.  651 : 

26. 
Wetz  V.  Beard,  12  O,  St  431 :  572. 
Weymouth  v.  Sanborn,  43  N.  H.  171 : 

346. 
Whalen  v.  Cadman,  11  la.  226:  59, 

83,  97. 
Wharton  v.  Leggett  80  N.   C.  169: 

480.  640,  65.5. 
v.  Moore,  84  N.  C.  479 :  366. 
v.  Taylor,  8.8  N.  C.  230 :  228.   640. 
Wheat  v.  Burgess,  21  Kas.   407:  686. 
Wheatley  v.  Griffin,  60  Tex.  209  :  114, 

388. 


XCll 


TABLE    OF    CASES. 


Wheedon  v.  Goiliam,  38  Ct  412 :  41. 
Wheeler  v.  Christopher,  68  Ga.  635 : 
417. 
V.  Cropsey,  5  How.  Pr.  288 :  810, 

811. 
V.  Gage,  28  111.  App.  427 :  44. 
V.  Eeddin,  55  Ga.  87 :  279. 
V.  Smith,  62  Midi.  373:  571,  580. 
Wheelright  v.  Freeman,  12  Met.  154 : 

258. 
Whetstone  v.   Coffey,  48  Tex.   269: 

123. 
Whicher  v.  Long,  11  la.  48:  811. 
Whipple  V.  Judge,  26  Mich.  343 :  32. 
Whitaker   v.    Elliott,  73  N.  C.   186: 

334. 
Whitcomb  v.  Reid,  81  Miss.  567 :  789, 
799. 
V.  Whitcomb,  52  la.  715 :  74,  745. 
White  V.  Capron,  52  Vt.  634 :  797,  809. 
V.  Clark,  36  111.  285 :  357,  516,  580. 
V.  Downs,  40  Tex.  225 :  333. 
V.  Dunn,  134  Mass.  271  :  824. 
V.  Fulghum,  87   Tenn.   281 :    30, 

410. 
V.  Gemeny  (Kas.),   28  P.     1011 : 

797. 
V.  Heffner,  30  La.  Ann.  II,  1280 : 

904. 
V.  Owen,  30  Gratt.  43 :  230,  376, 

549. 
V.  Patten,  24  Pick.  324 :  392. 
V.  Plummer,  96  111.  394 :  265,  585. 
V.  Polleys,  20  Wis.  503 :  403,  410, 

412,  531. 
V.  Rice,  5  Allen,  73 :  258. 
V.  Rowley,  46  la.  680 :  156,  413, 

756. 
V.  Samuels,  54  Ga.  548 :  644 
V.  Wadlington,  78  Tex.  159 :  196, 

502. 
V.  Wheelan,  71  Ga.  533 :  337,  500. 
White's  Adm'r  v.  Curd,  86  Ky.  191 : 
343. 
V.  White,  63  Vt.  577  :  594. 
Whiteacre   v.  Rector,  29  Gratt.  714, 

717:  9,  14,323. 
White    Deer   Overseer's    Appeal,  95 
Pa.  St.  191 :  881. 


Whitehead   v.    Conklin,   48   la.  478: 

464,  592. 
V.  Nick^lson,  48  Tex.  530 :  58. 
V.  Spivey,  103  N.  C.  66:  532. 
V.  Tapp,  69  Mo.  415 :  66,  581,  772, 

826. 
Whiteman  v.  Field,  53  Vt  554 :  73, 

74,  567. 
Whiting  V.  Eichelberger,  16  la  422 : 

351. 
Whitley  v.  Stephenson,  38  Miss.  115: 

788. 
Whitney  v.   Traynor,   74   Wis.  289: 

354. 
Whitsell  V.  Mills,  6  Ind.  229 :  75. 
Whittaker  v.    Pendola  (Cal.),   20  P. 

680:  949. 
Whittenberg  v.  Lloyd,  49  Tex.  633 : 

317,  43.5,  443,  592. 
Whittington  v.  Calbert,  50  Ga,  584 : 

279. 
Whittle  V.  Samuels.  54  Ga.  548 :  272, 

633. 
Whitton  V.  Whitton,  38  N.  H.  127 : 

135. 
Whitworth  v.  Lyons,  39  Miss.  467: 

580. 
Wicker  v.   Comstock,   52  Wis.  315: 

813,  814,  866. 
Wicks  V.  Smith,  21  Kas.  412:  262. 
Wiggin  V.  Buzzell,  58  N.  H.  829 :  73, 

74,  97. 
Wiggins  V.  Chance,  54  111.  175 :  495, 

563. 
Wilcox  V.  Hawley.  31  N.  Y.  648 :  523, 

787,  806,  810,  918. 
V.  Howe,  59  Hun,  268,  271 :  779, 

878,  882. 
V.  Jackson,  13  Pet.  498 :  938. 
Wilder  v.  Brooks,  10  Minn.  50 :  396, 

397. 
V.  Frederick,  67  Ga  669 :  122, 270, 

687,  698. 
V.  Haughey,  21  Minn.  101 :  118, 

263,  529. 
Wildermuth  v.  Koenig,  41  O.  St.  180 : 

530. 
Wildner  V.  Ferguson,  42  Minn.  112: 

824. 


TABLE    OF    CASES. 


XCIU 


"Wilds  V.  Vanvoorhis,  15  Gray,  139: 

14. 
Wilhite  V.  Williams,  41  Kas.  288 :  797, 

804. 
Wilhoit  V.  Bryant,  78  Cal.  263 :  418. 
Wilkins  V.  Marshall,  80  111.  74 :  563. 
Wilkinson  v.  Alley,  45   N.  H.  551: 
798. 
V.  Leland,  2  Pet.  627 :  476. 
V.Merrill,  87  Va.  513:  7,85. 
V.  Scott,  17  Mass.  249,  257 :  393. 
Williams  v.   Bowden,   69  Ala   433: 
10,  322,  323,  913,  914. 
V.  Dorris,  31  Ark.  468 :  149,  193, 

195. 
V.  Golden,  10  Neb.  433 :  786,  863, 
V.  Hall,  33  Tex.  215 :  223. 
V.  Ingersoll,  89  N.  Y.  508 :  893. 
V.  Jones,  100  III.  363 :    333,  337, 

339,  348,  500. 
V.  Link,  64  Miss.  641 :  834. 
V.  Miller,  16  Ct.  143 :  859. 
V.  Moody,  35  Minn.  280 :  558,  563, 

693. 
V.  Otey,  8  Humph.  569 :  646. 
V.  Pouns,  48  Tex.  144 :  432. 
V.  Robbins,  15  Gray,  590 :  515. 
V.  Starr,  5  Wis.  534 :  478. 
V.  Swetland,  10  la  51 :  179,  373, 

384. 
V.  Thorn,  70  N.  Y.  270 :  836. 
V.  United  States,  138  U.  S.  514 : 

930. 
V.  Wethered,    37  Tex.   130:    138, 

597. 
V.  Whitaker  (N.  C),  14  S.  E.  934 : 

628,  646. 

V.  Williams.  7  Bax.  116 :  546,  583. 

V.  Wills  (Tex.),  19  S.  W.  683 :  755. 

V.  Young,  17  Cal.   403 :  63,   333, 

686,  729. 

Williams'   Estate,    141    Pa   St.   436: 

790. 
Williamson  v.  Harris,  57  Ala.  40 :  828, 
880. 
V,  Krumbhaar,  132  Pa  St.  455 : 
779,  861. 
Willingham  v.  Maynard,  59  Ga  330, 
333 :  370,  363,  393. 


Willis  V.  Cushman,  115  Ind.  100,  105: 

767. 
V.  Farley,  34  Cal.  491 :  627. 
V.  Jelineck,  27  Minn.  18:  137. 
V.  Matthews,   46    Tex.   483 :  122, 

309,  730,  744. 
V.  Mike,  76  Tex.  83 :  853. 
V.  Morris,  66  Tex.  628 :  247,  777, 

798,  801. 
Williston  V,   Schmidt,   28  La  Ann. 

416:  730. 
Wills  V.  Downs,  38  111.  App.  269 :  907. 
Wilmington  v.  Sutton,  6  la.  44 :  78a 
Wilson  V.  Biscoe.  11  Ark.  44:  32. 
V.  Brown,  58  Ala.  62 :  358,  665. 
V.  Christopherson,    53    la    481 : 

47,  422,  431. 
V.  Cochran,  31  Tex.  680:   58,  59, 

83,  96,  133. 
V.  Daniels.  79  la  133 :  565. 
V.  Ellis,  1  Denio,  463:  865. 
V.  Fine,  14  Saw.  324 :  940. 
V.  Frideuburg,  19  Fla.  461 :  448, 

461,  618,  619,  620. 
V.  Gray,  59  Miss.  525 :  385. 
V.  Hyatt,  4  S.  C.  369 :  754. 
V.  Joseph,  107  Ind.  490 :  874,  888, 

890. 
V.  Madison,  58  Cal.  1 :  306,  744. 
V.  McElroy,   32  Pa  St.  83 :  833, 

877. 
V.  McMillen,  80  Ga  733 :  548,  817. 
V.  Mills  (N.  H.),  23   A.  455:  172, 

383,  429. 
V.  Patton,  87  N.  C.  318:  299,  410, 

678,  716,  875. 
V.  Paulson,  57  Ga.  596 :  309,  880. 
V.  Proctor,  38  Mmn.  13 :  156,  214, 

408. 
V.  Rogers,  68  Ga  549 :  270. 
V.  Scott,  39  O.  St.  636 :  79, 
V.  Sparks,  73  N.  C.  308 :  280. 
V.  Strobach,  59  Ala.  488 :  861. 
V.  Swasey  (Tex.),  20  So.  48:  741. 
V.  Tauber,  98  N.  C.  275 :  667,  674. 
V.  Wilson,  40  la,  230 :  745. 
Wimbish  v,  Tailbois,  Plowd.  38,  59: 

43. 
Wimer  v.  Pritchartt,  16  Mo.  252:  780. 


XC17 


TABLE    OF   CASES. 


Winchester  V.  Gadfly,  72  N.   C.  115: 

514. 
Windlo  V.  Brandt,   55   la.  221:  187, 

576. 
Windley  v.  Tankard,  88  N.  C.  223 : 

676. 
Wing  V.  Cropper,  35  111.  264 :  421,  550, 
554,  688,  748. 
V.  Hayden,    10   Bush,   280 :    422, 
551,  667. 
Winfield  v.  Rhea,  73  Ga.  477  :  554. 
Wingler  v.  Mcintosh,  100  Ind.  439 : 

916. 
Winkleman    v.   Winkleman,   79   la. 

319:  415. 
Winn  V.  Patterson,  9  Pet.  663 :  406. 
Winslow   V.  Noble,  101  111.  194:  345, 

349,  528,  579. 
Winter  v.  Simpson,  42  Ark.  410 :  883. 
Winterfield  v.  Railroad,  29  Wis.  589  : 

880,  899. 
Winters  v.  Davis,  51  Ark,  335:  650. 
Wis.  Central  R.  Co.  v.  Price,  133  U. 

S.  496 :  953. 
Wise  V.  Frey,  7  Neb.   134:  904,  909. 
V.    Williams,   72  Cal.   547:    380, 
383,  550. 
Wisner    v.    Farnham,   2   Mich.  472: 

196,  519,  689. 
VViswell  V.  Wilkins,  5  Vt.  87:  135. 
Witherington  v.  Mason,  86  Ala.  345: 

17,  375,  412,  427. 
Witherspoon  v.  Duncan,  4  Wall.  210 : 

039. 
Withers  v.  Jenkins,  21  S.  C.  365 :  228. 
Witter  V,  Dudley,  42  Ala.  616 :  357. 
Wochoska  v.  Wochoska,  45  Wis.  423 : 

476,  478. 
Woerther  v.  Miller,  13  Mo.  App.  567 : 

317,  376. 
WofiFord  V.  Gaines,  53  Ga.  485 :  338, 

912. 
Wolf  V.  Fleishacker,  5  Cal.  244 :  137, 
140. 
V.  Ogden,   66   111.    224 :  120,   463, 

492,  494. 
V.  Wolf,  67  III.  55 :  605. 
Wolfe  V.   Buckley,  52  Tex.  641 :  317, 
435,  593. 


Wolfenbarger  v.  Standifer,  3  Sneed, 

659 :  764,  809. 
Wolff  V.  Summers,  2  Camp.  G31  :  795. 
Womble  v.  Battle,  3  Ired.  Eq.  182: 

334. 
Wood  V.  Bresnahan,  63  Mich.  614: 
775,  798,  801,  901. 
V.  Lord,  51   N.  H.  448 :  66,  346, 

348,  385,  393,  404,  581. 
V.  Morgan,  56  Ala.  397 :  705. 
V.  Railroad.  104  U.  S.  329 :  946. 
V.  Tiinmermau,  29  S.  C.  175 :  533. 
V.  Wheeler,  7  Tex.  25 :  224,  388, 
400,  600,  722,  730. 
Woodall  V.  Kelly,  85  Ala,  368 :  357, 
553. 
V.  Rudd,  41  Tex.  375 :  455. 
Woodbury   v.  Luddy,   14    Allen,    1 : 
258,  580. 
V.  Murray,  18  Johns.  (N.  Y.)  400: 
187. 
Woodlie  V.  Towles,  9  Bax.  592 :  281. 

342,  346. 
Woodman    v.   Lane,   7    N.   H.   245: 

187. 
Woods  V.    Chambers,   20  Tex.   247: 
515,  516,  530.  535. 
V.  Davis,  34  la.  264 :  73,  74,  84,  85, 

94. 
V.  Keyes,  14  Allen,  236 :  797. 
V.  Perkins  (La.),  9  So.  48  :  38,  655. 
V.  Sanford,  9  Gray,  16 :  279. 
V.  Wallace,  30  N.  H.  384:  616. 
Woodstock  Iron   Co.  v.   Richardson 

(Ala.),  10  So.  144:  385,  424. 
Woodward  v.  Lincoln,  9  Allen,  239 : 
695,  702. 
V.  Murray,    18  Johns,   400 :   562, 

771,  787. 
V.  Seaver,  38  N.  H.  29 :  555. 
Woodvvorth  v.   Comstock,  10  Allen, 
425 :  79,  83,  97,  568,  580, 
v.  Paige.  5  O.  St.  70 :  523. 
Woolcutt  V.  Lcrdell,  78  la.  668 :  17, 

374,  562. 
Woolfolk  V.  Kemper,  31   Mo.    App. 
421:  913. 
V.  Rickets,  41  Tex.  358  :  568. 
V.  Ricketts,  48  Tex.  28 :  560,  570. 


TABLE    OF   CASES. 


xcv 


Wooster  v.  Page,  24  N.  H,   125 :  441, 

836,  919. 
Worland   v.    Kiniberlin,    6   B.    Mon. 

608:  524. 
Worman  v.  Giddey,    30  Mich.   151 : 

144. 
Worshara  v.   Freeman,  34  Ark.  55 : 

400. 
Worth  V.  Branson,  98  U.  S.  118:  949. 
Worthington  v.  Hanna,  23  Mich.  530  : 

861. 
Worrell  v.   McDonald,  66  Ala.  572: 

428. 
Wray  V.  Davenport,  79  Va.  19:   165, 

170,  230. 
Wright  V.  Deyoe,  86   111.   490:   778, 
881. 
V.  Ditzler,  54  la.  6:i0:  185,  232. 
V.  Doherty,  50  Tex.  34 :  597,  694, 

695. 
V.  Dunning,  46  Bl.  271:  61,  272, 
304,   565,   568,   586,  619,  730. 
747. 
V.  Grabfelder,  74  Ala.  460 :  555, 

880. 
V.  Hays,  34  Tex.  261 :  388,  603. 
V.  Heffner,  57  Tex.  518 :  340. 
V.  James,  64  Ga.  533 :  78. 
V.  McNutt,  49  Tex.  425 :  251. 
V.  Pratt,  31  Wis.  99 :  140,  143, 905. 
V.  Railway  Co.,  19  Neb.  175  :  893, 

897. 
V.  Smith,  74  Me.  495 :  827. 
V.  Straub,  64  Tex.  64 :  20,  227,  301. 
V.  Westheimer  (Idaho),  28  P.  430 : 
47,  306. 
Wyche  v.  Wyche,  85  N.  C.  96 :  678, 

725. 
Wyckoflf  V.  Wyllis,  8  Mich.  48:  779. 
Wygant  v.  Smith,  2  Lans.  (N.  Y.")  185 : 
Wyman  v.  Prosser,  36  Barb.  368  :  609. 

V.  Wyman,  26  N.  Y.  253 :  609. 
Wymond  v.  Amsburg,   2  Colo.  213: 

859. 
Wyndham  v.  Chetwynd,  1   Burrow. 

419:  52. 
Wynn  v.  Flanuigan,  25  Tex.  781  :  339. 
Wynne  v.  Hudson,  66   Tex,   1 :    183, 
251,  570. 


T. 

Yale  V.  McLaurin,  66  Miss.  461 :  837. 
Yarboro  v.  Brewster,  38  Tex.  397  :  492, 
Yarborough  v.  Harper,  25  Miss.  112: 

864. 
Yates  V.  Gransbury,  9  Colo.  323:  917. 
V.  McGibben,  66  la.  357:  166,219. 
Yeates  v.  Briggs,  95  111.  79 :   586,  624, 

633,  739. 
Yelverton  v.  Burton,  26  Pa.  St.  351 : 

316,  765, 
Yocum  V.  Lovell,  111  111.  212:  555. 
Yoe  V.  Hanvey,  25  S.  C.  94 :  459.  657. 
York  V.  York,  38  111.  522 :  788,  857. 
York  Ry.  Co.  v.  The  Queen,  1  E.  &  B. 

858 :  25. 
Yost  V.  Devault,  9  la.  60:    164,  179, 

202,  352,  388. 

Young  V.  Baxter,  55  Ind.  188:  862. 

V.  Boulden,  57  Md.  314 :  784. 

V.  Goss,  42  Kas.  502 :  944. 

V.  Graff,  28  111.  20 :  486. 

V.  Morgan,  89  111.  199:  213. 
Youngblood  v.  Lathen,  20  S.  C.  370 : 
268,  709. 

z. 

Zapp  V.  Strohmeyer,  75  Tex.  638 :  85, 

94,  459, 
Zellers  v,  Beckman,  64  Ga.  747 :  648, 

688. 
ZvUner  v.  Mobley,  84  Ga.  746  :  391. 
Zelnicker  v.  Brigham,  74  Ala.  598: 

665,  874,  880. 
Zielke  v.  Morgan,  50  Wis.  560 :  776, 

814,  815,  817,  866,  881. 
Zimmer  v.  Pauley,  51  Wis.   282 :  30, 

203,  573. 

Zimmerman  v.  Franke,  34  Kas.  650  : 

890,  900. 
Zoellner  v.  Zoellner,    53  Mich.   620: 

619,  628. 
Zorn  V.  Walker,  43  Ga,  418 :  740. 
Zundell   v.   Gess,  73  Tex.   144:   339, 

500. 
Zwernemann  v.  Von  Rosenberg,  76 

Tex.  522:   92,  599,  657,  658, 

704. 


INTRODUCTION, 


The  family  historically  precedes  the  state.  It  is  the  germ 
from  which  all  social,  industrial  and  political  institutions  have 
grown,  and  it  continues  to  be  the  basis  on  which  they  all  rest. 
It  is  the  primal  source  of  property  right  and  distribution,  yet 
the  family  is  not  represented  in  state  government.  The  head 
of  it  does  not  personate  it  at  the  ballot-box;  does  not  cast 
any  vote  for  his:  wife  and  children ;  for  he  has  no  greater  voice 
than  that  of  his  bachelor  neighbor.  Tie  exercises  his  right 
of  suffrage  as  a  citizen :  not  as  a  husband  and  father.  The 
family,  as  such,  has  no  voice  whatever  in  the  government. 

The  state,  governed  by  individuals,  bears  directly  upon  in- 
dividuals. In  some  important  respects,  the  tendency  to  elevate 
each  citizen,  as  such,  is  in  the  right  direction.  Its  degree  of 
accomplishment  thus  far,  especially  in  the  recognition  of  the 
individual's  liberty  of  contract,  has  been  accounted  the  most 
distinct  and  valuable  result  of  modern  society.  But  this  has 
been  at  the  expense  of  the  family,  as  shown  by  Sir  Henry 
Maine.  The  influence  of  the  home  and  the  family  has  dimin- 
ished as  individualism  and  the  liberty  of  personal  contract 
have  increased  in  importance. 

No  legislation  in  modern  times  has  done  more  for  the  rec- 
ognition of  homes  and  families  than  that  for  the  fostering  of 
homesteads  in  this  country,  for  the  past  fifty  years.  It  has 
been  done  somewhat  at  the  expense  of  individualism  and  the 
personal  liberty  of  contract ;  yet  not  avowedly  or  designedly 
so;  it  has  antagonized  some  principles  that  had  gained  firm 
ground,  and  has  somewhat  diverted  their  tendencies. 

Homestead  law  lies  within  the  general  legal  system  as  a 
wheel  within  a  wheel;  as  a  machine  designed  to  run  harmo- 
niously within  a  greater  organism  but  touching  it  at  various 
points  and  sometimes  disturbing  its  usual  action.   The  clashing 


XCVlll  INTKODrOTlON. 

does  not  represent  what  is  properly  termed  a  conflict  of  laws, 
but  it  is  the  friction  of  innovations  uj)on  previously  established 
jurisprudence,  meant  to  be  adapted  to  it,  but  affecting  its 
operation  upon  the  home  and  the  family,  and  the  individual's 
right  of  contract  and  property  disposition,  under  prescribed 
conditions.  On  the  other  hand,  this  legislation  tends  to  pro- 
mote the  individualism  of  the  wife  in  her  rights  of  contract 
and  property  disposition  in  the  face  of  previously  established 
jurisprudence. 

Among  the  innovations  of  homestead  legislation  may  be 
briefly  mentioned  the  recognition  of  the  family  institution  as 
an  essential  element  of  the  governmental  and  social  organism ; 
the  admission  of  its  claims  upon  the  state  for  protection  and 
conservation;  the  distinction  of  home  property  from  other 
realty,  with  special  provisions  in  its  favor;  the  coupling  of 
these  provisions  with  conditions  u]wn  the  married  owner  of 
such  property  that  he,  upon  its  dedication,  shall  relinquish  his 
individwdl  j us  disjyonetuU  Sbiid  admit  his  wife  to  share  in  its 
alienation  or  incumbrance;  the  giving  to  her  and  the  minor 
children  the  semblance  of  an  estate  in  home  property  which 
they  do  not  own  under  any  species  of  title;  the  delay  in  the 
partition  and  settlement  of  homestead  estates  till  minor  heirs 
reach  their  majority;  the  taking  of  property  out  of  commerce 
to  a  degree,  or  hindering  its  free  sale  or  exchange;  the  limita- 
tion of  the  notified  creditor's  security  for  debt  due  him;  and 
the  modifications  of  the  law  of  estoppel,  mortgage  foreclosure, 
the  vindication  of  liens  generally  as  to  the  favored  property, 
and  the  encroachment  upon  the  jurisdiction  of  courts. 

If  there  were  a  uniform  homestead  system  for  all  the  states, 
its  adjustment  to  the  general  legal  organism  would  be  not 
free  from  difficulty;  yet  the  subject  could  be  treated  with  a 
degree  of  unity  and  perspicacity  which  is  impossible  when 
there  are  many  different  systems.  Some  forty  states  and 
territories  have  homestead  statutes.  Those  which  so  far  ac- 
cord with  each  other  as  to  present  a  family  likeness  may  be 
said  to  constitute  the  prevalent  system  outlined  in  the  diagram 
placed  at  the  beginning  of  this  treatise.  Those  which  are  ex- 
ceptional make  a  large  minority  of  the  whole.  Indeed,  the 
former  are  not  wholly  free  from  exceptions  to  the  prevalent 
system,  while  the  latter  are  not  wholly  incongruous  with  it. 


INTRODUCTION.  XCIX 

Scarcely  any  two  statutes  agree  in  all  particulars.  There  is 
such  variety  of  provisions  that  even  the  brief  summary  of  in- 
novations upon  previously  established  la\v,  above  given,  is  not 
applicable  to  every  state.  The  difficulty  of  treating  the 
general  subject  is  therefore  greatly  enhanced ;  so  that,  instead 
of  simple  and  positive  statements  of  law,  it  is  frequently 
necessary  that  they  be  qualified  as  applicable  to  particular 
states  only. 

Some  statutory  provisions,  which  are  substantially  uniform 
in  several  states,  take  on  differences  when  sifted  through  the 
judicial  sieve.  Whether  the  variances  are  attributable  to  leg- 
islation or  construction,  the  effect  upon  the  task  of  the  com- 
mentator is  to  render  it  more  difficult  than  that  of  treating  a 
uniform  system  would  be.  So,  if  the  following  pages  be  found 
sometimes  incumbered  with  exceptions  to  general  statements 
in  decisions  as  well  as  in  statutes;  if  the  treatment  of  ques- 
tions be  found  sometimes  apparently  circuitous  rather  than 
direct,  it  maybe  pleaded  in  extenuation  that  the  subject  itself 
is  wanting  in  unity,  the  statutes  variant  and  the  decisions 
therefore  often  diverse.  It  is  hoped  that  those  who  ride  with 
me  over  the  extended  road  before  us  will  attribute  some  of 
the  jolting  to  the  hills  and  hollows  of  the  way. 

Those  who  look  for  dogmatic  statements,  applicable  to  the 
whole  country,  on  every  point,  will  be  disappointed.  The  re- 
striction of  every  statutory  provision  to  its  own  province,  and 
of  every  decision  to  its  own  local  bearing  when  not  of  gen- 
eral application,  could  not  be  neglected  to  save  the  text  from 
being  tedious.  To  effect  this  restriction,  two  methods  sug- 
gested themselves:  one,  to  name  the  states  to  which  a  prin- 
ciple was  applicable ;  the  other,  to  let  the  cited  authority  fix 
the  limitation.  The  former  would  have  been  awkward,  cum- 
bersome, and  hardly  practicable  without  extending  the  treat- 
ise to  two  or  three  volumes.  The  latter  method  has  been 
adopted.  The  notes  qualify  and  confine  the  statements  of 
the  text,  and  relieve  them  in  places  from  apparent  contra- 
dictions. 

It  has  been  frequently  necessary,  however,  to  discuss  decis- 
ions in  the  text,  and  to  inquire  whether  their  reasons  are  such 
as  to  commend  them  to  general  acceptance.  The  principle  of 
stare  decisis  has  been  religiously  regarded,  even  to  the  recog- 


C  INTKODITCTION. 

nition  of  the  legal  apothegm :  Res  judicata  facet  exallo  nigrum, 
ex  nigro  alburn^  excurvo  rectum,  ex  recto  curvum.  But  a  thing 
adjudged  does  not  make  white  black  and  black  white,  etc., 
outside  of  the  state  where  the  adjudication  is  made,  when  the 
deliverance  is  based  on  a  local  statute;  nor  does  a  decision  on 
any  principle  have  authority  beyond  the  jurisdiction  within 
which  it  is  rendered.  The  reasons  are  open  to  discussion  in 
every  other  jurisdiction.  It  is  the  applicability  of  judicial 
reasons,  rendered  in  one  state,  to  questions  arising  in  another 
that  I  have  had  occasion  to  review.  Especially  when  decis- 
ions of  different  states  conflict  on  the  same  point  or  principle, 
inquiry  into  the  relative  weight  of  the  counter  arguments  ad- 
duced has  been  found  necessary  to  the  proper  treatment  of 
the  subject.  To  give  decisions  only,  without  any  attempt  to 
reconcile  divergences,  or  to  discuss  principles,  is  to  make  a 
digest  —  not  a  treatise. 

The  criticisms  (if  they  may  be  so  called)  are  not  meant  to 
be  captious,  or  wanting  in  respect  for  any  court.  I  certainly 
entertain  the  highest  regard  for  the  judiciary  of  the  country  — 
not  excelled  for  learning  and  probity  by  any  in  the  world. 
But  two  conflicting  decisions  cannot  both  be  right.  The 
treatise-writer  is  no  umpire  to  decide  between  them,  but  he 
should  treat  them  when  they  cross  his  path,  or  he  should  not 
write  at  all.  Not  merely  conflicts  but  erroneous  tendencies 
give  occasion  for  review  and  suggestion.  If  there  is  a  trend 
towards  the  extension  of  homestead  statutes  without  due  re- 
gard to  the  rules  applicable  to  all  construction ;  if  there  is  not 
sufficient  prominence  given  to  the  law  of  notice  to  creditors  rel- 
ative to  exemption;  if  the  true  policy  of  legislation  favoring 
homes  is  anywhere  misunderstood ;  or  if  there  is  anything  of  a 
general  character  inviting  suggestion,  may  not  such  matters 
come  under  review  without  offense?  For  instance,  it  has  been 
gravely  said,  in  view  of  the  beneficence  extended  to  debtors, 
that  homcLtead  laws  are  not  meant  to  be  just  to  creditors. 
Were  this  true,  they  would  not  be  worthy  to  be  called  laws; 
but  its  falsity  may  be  exposed,  without  harshness,  by  calling 
attention  to  the  law  of  notice  under  which  the  creditor  knows, 
when  he  trusts  the  debtor,  that  he  cannot  look  to  the  lat- 
ter's  homestead  as  security. 

Advance  in  the  settlement  of  legal  questions  (not  determined 


INTRODUCTION.  CI 

by  aiitbority)  is  made  precisely  as  in  all  other  mooted  points 
of  science  —  not  by  dogma  but  demonstration ;  not  by  the 
opinion  of  one  writer  or  many  but  by  the  acquiescence  of  think- 
ers generally.  It  is  therefore  to  the  legal  profession  —  on 
benches  and  off  —  that  open  questions  look  for  solution,  until 
finally  settled  by  the  courts. 

The  subject  has  grown  upon  me  as  its  features  have  become 
familiar.  Its  importance  has  been  realized  more  and  more,  so 
that  home  conservation  now  appears  to  me  as  one  of  the  great- 
est advances  in  civilization  during  the  present  century.  It 
ought  to  have  recognition,  in  some  appropriate  way,  this  year 
at  the  World's  Columbian  Fair. 

So  much  by  way  of  introduction,  which  in  the  parlance  of 
the  old  books  may  be  fitly  called  The  Author'' s  Apology. 


HOMESTEAD  AND  EXEMPTION. 


CHAPTEE  L 


LEADING  PRINCIPLES. 


§  1.  The  Qualified  Family  Residence. 

2.  Policy  —  To  Conserve  Homes. 

3.  The  Property  Exempted. 

(1)  Property  habitable. 

(2)  Property    occupied    by  a 

family. 

4.  Exemption    from    Ordinary 

Debts. 


5  5.  Notice  to  Creditors  Essential. 

6.  States,  as  Creditors. 

7.  Liability  for  Liens. 

8.  Prevention  of  Property-Indebt- 

edness. 

9.  The  Governing  Law. 

10.  Summary  of  Leading  Princi- 
ples. 


§  1.  The  Qnalified  Family  Residence. 

A  homestead  is  ordinarily  a  family  residence,  but  the  word 
has  both  a  common  and  a  technical  meaning;  the  latter  is 
employed  in  the  title  and  text  of  this  treatise.  As  a  law  term, 
it  may  be  thus  defined :  Homestead  is  a  family  residence  owned, 
occupied,  dedicated,  limited,  exempted,  and  restrained  in  alien- 
ability, as  the  statute  prescribes. 

In  this  sense,  courts  and  the  profession  generally  are  in  the 
constant  habit  of  using  the  word.  In  legal  arguments,  decis- 
ions, reports,  digests,  statutes  and  constitutions,  this  is  the 
usual  significance.  The  Avord  is  rarely  used  in  its  ordinary 
sense  and  then  qualified  to  show  that  an  exempt,  restricted, 
statutory,  family  residence  is  meant. 

The  use  of  the  term  has  been  judicially  reprobated,  when 
the  property  meant  to  be  indicated  was  not  exempt,  in  the 
following  words,  quoted  as  italicised  by  the  court :  "  In  con- 
sidering the  claims  of  anterior  creditors  and  the  creditor  to 
whom  purchase-money  is  due,  it  is  a  wrong  use  of  language 
to  call  the  estate  a  homestead.  No  homestead  exists  against 
such  claims.''''  ^  Even  in  pleading,  the  word,  employed  without 
qualification,  has  been  taken  by  the  court  in  its  technical  sense. 

1  Lamb  v.  Mason,  50  Vt.  350. 


2  LEADING    PRINCIPLES. 

An  averment,  in  a  bill  of  complaint,  that  the  land  on  which 
the  complainants  lived  was  their  homestead,  was  held  to  be 
a  sufficient  allegation  that  its  value  did  not  exceed  the  statu- 
tory limitation.*  The  word  occurring  in  a  will  was  construed 
to  express  the  legal  sense,  so  that  the  devisee  to  whom  the 
testator  had  bequeathed  his  homestead  could  take  only  what 
was  within  the  limitation  of  the  homestead  statute.^  The 
word  is  not  always  thus  construed  in  testamentary  disposi- 
tions.^ And,  in  pleading,  greater  particularity  than  that  above 
indicated  would  be  required  by  many  courts.*  The  safe  rule 
to  ascertain  whether  the  word  is  used  as  in  common  parlance 
or  in  its  technical  sense  —  not  only  in  wills  and  pleas  but  in 
judicial  opinions  and  any  legal  writing  —  is  to  gather  the 
meaning  from  the  context. 

It  is  curious  to  note  that  while  courts  usuallj^  employ  the 
word  as  above  defined,  or  at  least  as  meaning  an  exempt  fam- 
ily residence,  they  frequently  follow  the  dictionaries  when  they 
give  a  definition  of  it,  as  though  it  were  without  other  signifi- 
cation than  that  in  common  parlance.'  Even  in  opinions  con- 
taining such  definition,  the  technical  term  may  be  found, 
employed  to  represent  the  qualified  family  residence.  To 
give  instances  of  the  technical  use  would  be  superfluous,  since 
almost  every  case  cited  in  this  treatise  affords  an  example  of 
such  use. 

The  word  ought  never  to  be  employed,  in  either  of  its 
senses,  to  express  mere  exempt  realty  when  the  debtor's  home 
is  not  meant.  Statutes,  exempting  a  stated  amount  of  real  or 
personal  property  or  both,  without  reference  to  home  or  family, 
are  not  homestead  statutes,  though  sometimes  so  miscalled. 

It  is  hoped  that  the  definition  above  given  will  be  found 
generally  accurate ;  but  all  of  the  qualifications  of  the  family- 
residence  therein  stated  are  not  universally  pertinent.  Some 
of  the  statutes  impose   no  restraint  of  alienation  upon  the 

1  Evans  v.  Grand  Rapids  R.  Co.,  68  it  is  said  :  "  The  word  '  liomestead '  is 
Mich.  602.  used  in  the  constitution  in  its  popu- 

2  Backus  V.  Chapman,  111  Mass.  lar  sense."  But  it  is  immediately 
386.  added :  "  It  represents  the  dwelHng- 

3  Ford  V.  Ford,  70  Wis.  52.  house  where  the  family  resides.  Its 
*  See  oil.  XXIII,  §  7.  tests  are  use  and  quantity."  The  ap- 
8  Jaffrey  v.  McGough,  88  Ala.  648,     plication  of  these  tests  shows  that  the 

650.     In  Bebb  v.  Crowe,  39  Kas.  342,    technical  homestead  is  meant. 


POLICY  —  TO   CONSERVE    HOMES.  3 

householder ;  the  conditions  of  the  homestead  are  not  uniform 
in  all  the  states ;  the  widow'' s  homestead,  and  that  under  fed- 
eral law,  are  not  strictly  within  the  definition.  These  excep- 
tions will  be  noted  in  their  proper  place. 

Since  exemption  is  one  of  the  characteristics  of  homestead, 
why  is  it  made  a  separate  subject  in  the  title  of  this  treatise? 
Why  "Homestead  and  Exemption?"  Were  the  treatment 
confined  to  the  first  topic,  there  would  hav^e  been  no  need  of 
the  second  word ;  but  as  it  extends  to  the  the  protection  of 
chattels  and  of  other  realty  than  homesteads  from  forced  sale 
for  debt,  the  second  subject  is  not  superfluously  or  tautologic- 
ally  inserted  in  the  title. 

§  2.  Policy  —  To  ConserA  e  Homes. 

The  conservation  of  family  homes  is  the  purpose  of  home- 
stead legislation.  The  policy  of  the  state  is  to  foster  fam- 
ilies as  the  factors  of  society,  and  thus  promote  the  general 
welfare.  To  save  them  from  disintegration  and  secure  tl.eir 
permanency,  the  legislator  seeks  to  protect  their  homes  from 
forced  sales  so  far  as  it  can  be  done  without  injustice  to  others. 

The  reader  will  note  the  important  difference  between  the 
policy  to  conserve  homes  for  the  good  of  society  and  the  state, 
and  the  policy  to  save  the  property  of  poor  debtors  from  exe- 
cution for  their  own  good.  As  elsewhere  remarked  herein, 
homestead  statutes  are  not  poor  laws  made  for  the  benefit  of 
the  impecunious  only.  They  protect  the  family  homes  of  all 
classes.  Any  head  of  a  family,  however  solvent  and  affluent, 
may  dedicate  his  home  under  the  statutory  conditions,  and 
feel  sure  that,  whatever  ordinary  debts  he  may  afterwards 
incur;  whatever  embarrassments  he  may  encounter  incident 
to  such  debts, —  the  home  of  his  family  is  safe.  It  is  evident, 
therefore,  that  under  the  prevalent  homestead  system  (leav- 
ing now  out  of  view  the  exceptional  statutes  which  provide 
exemption  for  poor  debtors  and  needy  widows  and  orphans 
only),  the  policy  is  not  to  secure  to  the  householder  a  certain 
money-worth  of  realty ;  not  to  subserve  the  interests  of  im- 
mediate beneficiaries  only  —  but  to  protect  homes  as  the  pillars 
of  the  state  edifice.  The  charitable  effects  of  homestead  laws 
are  merely  incidentah 

The  reasons  which  support  this  broad  policy  are  cogent  and 


*  LEADING    PRINCIPLES. 

readily  apparent.  Families  are  the  units  of  society,  indis- 
pensable factors  of  civilization,  the  bases  of  the  commonwealth. 
Upon  their  permanency,  in  any  community,  depends  the  suc- 
cess of  schools,  churches,  public  libraries,  and  good  institutions 
of  every  kind.  The  sentiments  of  patriotism  and  independ- 
ence, the  spirit  of  free  citizenship,  the  feeling  of  interest  in 
public  affairs,  are  cultivated  and  fostered  more  readil}'^  when 
the  citizen  lives  permanently  in  his  own  castle  with  a  sense 
of  its  protection  and  durability. 

The  state  is  concerned  in  the  conjugal  and  parental  rela- 
tions ;  in  the  promotion  of  marriages  and  the  rearing  of  chil- 
dren; in  the  morality,  refinement  and  religion  of  families  and 
communities;  and,  on  the  other  hand,  it  is  injured,  and  its 
prosperity  endangered,  by  the  prevalence  of  divorces  and  by 
evervthing  which  tends  towards  the  disintegration  of  families 
and  the  breaking  up  of  homes.  The  proverb:  "When  pov- 
erty comes  in  at  the  door,  love  flies  out  at  the  window,"  is 
not  invariably  true ;  the  beautiful  picture,  in  Irving's  Sketch 
Book,  of  the  wife  consoling  and  encouraging  her  husband 
upon  the  loss  of  his  fortune,  is  not  an  exceptional  one ;  but  is 
it  not  true  that,  when  the  home  itself  has  been  taken  away,  the 
tendency  is  against  the  healthy  growth  of  the  sentiments 
above  mentioned  as  conducive  to  the  welfare  of  the  state? 

These  reasons  would  lead  us,  a  priori,  to  look  for  such  a 
policy  in  statutes  relating  to  the  home;  especially  when  we 
reflect  that  the  legislature  is  free  to  follow  such  reasons  but 
not  to  make  donations,  or  indulge  in  class  legislation  merely 
to  benefit  the  proprietors  of  homes  to  the  neglect  of  citizens 
and  others  who  have  none. 

Turning  to  those  statutes,  we  find  the  policy  clearly  indi- 
cated by  their  provisions  making  the  heads  of  families  and 
tbeir  households,  in  actual  occupancy  of  homes  constituted  as 
required,  the  onl}'"  beneficiaries,^ 

The  exceptional  statutes,  before  mentioned,  indicate  a  dif- 
I 

1  The  statutes  abound  in  such  ex-  every    family,   whether    owned    by 

pressions    as    these,    describing    the  husband    or  wife;"  "A  homestead 

homestead    and    tlie    beneficiaries :  occupied  as  a  residence  by  the  family 

"The   homestead  of  the  head  of  a  of  the  owner,"  etc.  They  will  be  cited 

family ;  "   "  Every  householder  hav-  freely  in  future  chapters, 
ing  a  family ;  "  "  The  homestead  of 


THE   PROPERTY   EXEMPTED.  5 

ferent  policj^  when  they  accord  the  exemption  of  a  certain 
value  of  realty  to  poor  debtors,  much  on  the  principle  of  chat- 
tel exemption. 

The  decisions  of  the  courts,  in  which  the  policy  of  home- 
stead legislation  is  touched  upon,  do  not  invariably  hold  that 
it  is  to  conserve  homes.^  Those  which  do  are  fairly  repre- 
sented b}^  an  early  one,  in  which  it  is  said:  "The  leading  idea 
upon  which  the  constitution  and  statutes  are  predicated  is  the 
protection  of  the  family,  and  not  the  exemption  of  a  cer- 
tain amount  of  real  estate."-  Expressions,  in  other  cases, 
favoring  a  different  policy,  when  unnecessary  to  the  decree, 
may  be  passed  as  ohiter  dicta.  Those  which  avow  the  charity 
theory,  as  a  reason  for  extending  the  statute,  will  hereafter 
come  under  review.  !N"o  one  opinion  is  now  called  to  mind 
in  which  that  theory,  or  the  benevolence  of  the  legislator  to 
the  poor,  has  been  distinctly  stated  in  the  construction  (and 
not  the  extension)  of  a  homestead  law,  and  made  a  reason  for 
judgment. 

§  3.  The  Property  Exempted. 

(1)  Projjerty  hahitable:  The  purpose  of  the  legislator  is  ef- 
fected by  exemption  and  by  restraint  upon  the  jus  disponendi 
by  sale  or  will.     The  former  is  the  method  now  to  be  noticed. 

It  is  property  —  not  merely  a  privilege  respecting  it,  or  an 
indisposable  right  in  it,  or  a  ^'wa^s^'-estate  not  proprietar}''  or 
transferable  —  which  the  law  exempts.  It  is  property  which, 
in  the  absence  of  exemption,  would  be  liable  to  execution. 
Personal  rights  and  privileges  not  disposable  would  not  be 
liable  to  execution  under  any  circumstances.  They  would  be 
lost  by  the  execution  of  that  on  which  they  rest,  if  not  re- 

1  Mr.  Kneeland,  in  his  work  on  At-  third,  the  subsequent  perfoi-mance  of 

tachments,  in  the  following  passage,  the  requirements,  if  any,  provided  by 

shows  family  homes  to  be  the  purpose  statute  as  a  prerequisite  for  the  crea- 

of  homestead  legislation :  "The  first  tion  of  such  aright."  Page  323.  See 

requisite  of  a  homestead  is  the  fact  Chs.  Ill  and  VI,  Tpost. 

that  it  is  essentially  the  home  of  the  -  Lies  v.  De  Diablar,  13  Cal.  328. 

person  claiming  it.     Three  facts  are  Similar  statements  of  the  true  policy 

necessary  to  constitute  a  homestead :  are  found  in  many  other  cases ;  but 

Fii'st,  its  actual  occupancy  as  a  resi-  it  is  not  contended  that  those  which' 

dence  by  the  family  of  the  house-  assume    the   charity  policy  are  less 

holder ;  second,  the  intention  on  his  numerous, 
part  to  make  it  a  permanent  home ; 


6  LEADING   PRINCIPLES. 

served;  and,  under  some  circumstances,  they  have  been  re- 
served in  sales  of  homesteads.^  They  are  benefits  inseparably 
connected  with  the  homestead,  but  they  do  not  constitute  it. 

It  is  home  })roperty  which  the  law  exempts.  It  must  be 
something  habitable  as  a  family  dwelling-house  —  whatever  the 
appurtenances  and  the  extent  of  land  exempt  with  it.  This 
leading  characteristic  is  essential  to  the  statutory  homestead.^ 
There  are  statutes  and  decisions  which  call  the  exemption  of 
interests  in  realty  by  the  name  homestead;  —  even  undivided 
and  partnership  interests  and  property  held  in  co-tenancy. 
These  statutes  and  rulings  will  be  treated  hereafter.'  Such 
interests  are  proper  subjects  of  exemption;  and  that  they 
are  exempted  in  certain  states,  in  the  interest  of  families  or 
whomever  the  legislator  has  made  beneficiaries,  is  all  that  he 
and  the  courts  have  meant  when  classifying  such  interests 
with  homesteads.  In  the  absence  of  exemption,  such  interests 
would  be  liable  to  execution  for  the  debts  of  their  owners :  so 
their  protection  from  it  may  be  conducive  to  the  welfare  of 
the  debtor's  family ;  but  there  can  be  no  home  in  a  mere  in- 
terest, as  there  are  no  atoms  in  ideas. 

(2)  Property  occupied  hy  a  family:  There  must  not  only  be 
habitable  property,  but  property  inhabited  by  its  owner's  fam- 
ily, to  constitute  a  homestead  according  to  nearly  all  the  stat- 
utes. The  protection  endures  while  the  family  endures ;  ceases 
when  it  ceases.  The  death  of  the  parents  and  the  termination 
of  the  children's  minority  end  the  homestead.  The  property 
remains,  but  all  that  made  it  a  legally  exempted  family  resi- 
dence would  be  gone  upon  the  happening  of  those  events ;  for, 
though  the  children  might  still  constitute  a  family  and  still 
occupy  the  premises,  they  would  not  be  such  a  family  as  the 
legislator  contemplated.* 

1  Lear  v.  Totteu,  14  Bush,  104 ;  Mc-  111.  40 :  Jarvais  v.  Moe,  38  Wis.  440 
Taggert  v.  Smith,  14  Bush,  414 ;  McDannell  v.  Ragsdale,  71  Tex.  23 
Evans  v.  Evans,  13  Bush,  587 ;  Wyche  Jacoby  v.  Distilling  Co.,  41  Minn.  227. 
V.  Wyche,  85  N.  C.  96;  Long  v.  230;  Bebb  v.  Crowe,  39  Kas.  343 
Walker,  105  N.  C.  90.  108 ;  Hanby  v.  Lubbock  v.  McMann,  82  Cal.  228 
Heuritze,  85  Va.  177,  185;  Const,  of  Spalding  v.  Crane,  4G  Vt.  292 ;  First 
Virginia,  art.  II,  §§  1,  5 ;  Va.  Code  N.  Bank  v.  HoUinsvvorth,  78  la.  575 ; 
(1873),  c.  183,  §  8 ;  post,  ch.  XV,  §§  8-  post  ch.  VI,  §?,  3,  4. 

12.  3  Post,  ch.  IV,  §§  10,  11,  12.  14. 

2  The  J.  I.  Case  Co.  v,  Joyce,  89  ^  For  authorities  on  the  subject  of 
Tenn.  337 ;  Kitchell  v.  Burgwin,  21    occupancy,  see  ch.  VI. 


TUE    PROPERTY    EXEMPTED.  7 

The  rule  is  that  the  required  occupancy  must  be  actual  and 
continuous,  though  temporary  absence  is  allowable  while  the 
home  is  maintained.'  Constructive  occupancy  is  exceptional. 
It  is  extensively  favored  when  there  is  ownership  with  intent 
to  occupy ;  especially  when  there  are  preparations  for  making 
a  home.  The  intention  and  preparation  consummated,  the 
owner  is  accorded  protection  from  the  date  of  purchase,  and 
held  to  have  complied  with  the  requirement  of  occupancy, 
under  this  exceptional  view.^  It  would  seem  that  retroaction 
by  the  law  of  relation  would  not  give  the  creditor  notice  from 
the  date  of  purchase ;  but  under  some  statutes  and  their  con- 
struction, the  public  may  be  said  to  have  notice,  when  the  title 
is  filed,  that  homestead  may  be  claimed. 

The  rule  is  that  to  constitute  such  family  as  the  homestead  law 
contemplates,  the  members  must  be  bound  lawfully  together  by 
blood  or  afflnit}'" ;  their  relation  must  be  that  of  status,  not 
contract :  such  as  that  of  parents  and  children.  Husband 
and  wife,  or  either  and  a  minor  child  or  more,  constitute  a 
family.  The  head  with  dependent  members  other  than  wife 
or  children,  whom  he  is  obligated  to  support,  has  a  family.^ 
But  when  we  find  a  single  person  recognized  as  a  family,*  or 
a  household  unlawfully  constituted  accorded  homestead  rights 
as  such,'*  Ave  must  note  the  case  as  exceptional. 

Without  controverting  such  unusual  ruling,  it  may  be  said 
confidently  that  the  legislator  when  providing  for  a  family 
did  not  mean  an  individual;  and  that  he  contemplated  a  law- 
fully constituted  family.  How  can  the  public  welfare  be  pro- 
moted by  the  conservation  of  a  family  immorally  organized? 
How  can  the  policy  of  the  law  to  preserve  families  by  saving 
them  from  the  mischief  of  disintegration  —  from  being  knocked 
to  pieces  with  the  official  auctioneer's  hammer  —  be  advanced 
by  the  exemption  of  the  homes  of  associated  persons  living  in 

1  Hotchkiss  V.  Brooks,  93  111.  386 ;  1057 ;  Wilkinson  v.  Merrill,  87  Va. 
Givans  v.  Dewey,  47  la.  414 ;  Weis-    513 ;  po.sf,  ch.  Ill,  §  1. 

brod  V.  Daenicke,  36  Wis.  73 ;  Hiatt  v.  *  Stults  v.  Sale,  17  N.  W.  (Ky.),  148 ; 

Bullene,   20    Kas.    557 ;     Currier    v.  Kessler  v.  Draub,  53  Tex.  575 ;  ch.  Ill, 

Sutherland,  54  N.  H.  475,  487;  post,  §  9. 

ch.  VI,  Occupancy.  5  Gay  v.  Hal  ton,  75  Tex.  203 ;  Lane 

2  Ch.  VI,  §5^  7-10.  V.   Philips,   69   Tex.   240 ;    Ex  parte 

3  Murdock  v.  Dalby,  13  Mo.  App.  41,  Brien,  8  Tenu.  Ch.  33. 
47 ;  Galliger  v,  Payne,  34  La.  Ann. 


8  LEADING    PRINCIPLES. 

habitual  violation  of  Jaw?  True,  such  immorally  associated 
persons  may  form  a  family,  in  a  sense ;  but  the  statutes  em- 
ploy the  word  family^  as  well  as  the  word  homedead,  in  a 
technical  sense.  Not  even  every  lawful  household  is  contem- 
plated :  only  married  parents  and  growing  children  (or  such 
parents  without  children,  or  one  parent  with  a  child  or  more), 
or  a  family  head,  and  members  dependent  upon  him  for  sup- 
port, and  whom  he  is  legally  bound  to  support,  constitute  such 
a  household  as  is  favored  by  homestead  laws,  as  a  general  rule. 

Not  every  homestead,  in  the  ordinary  sense  of  the  word,  is 
exempt:  only  the  technical  homestead,  as  defined  in  the  first 
section  of  this  chapter,  is  protected  from  forced  sale,  accord- 
ing to  most  of  the  statutes.  There  is  exemption  of  realty, 
as  well  as  personalty,  to  insolvent  and  other  debtors,  not  based 
on  family  protection;  and  there  is  exemption  of  business  es- 
tablishments in  one  state;  both  may  conduce  to  the  welfare 
of  the  family.  The  "  business  homestead  "  may  be  a  means  of 
family  support  —  just  as  an  exempt  chattel  may  be —  but  that 
is  no  warrant  for  the  use  of  the  term.^ 

The  homestead,  habitable  and  inhabited  as  above  described, 
is  subjected  to  quantitative  or  monetary  limitations ;  and,  in 
some  states,  to  both.^  Distinction  is  drawn  between  urban 
and  rural  homesteads  as  to  the  extent  of  realty  exempted,  but 
the  monetary  restriction  is  applicable  to  both  classes.* 
§  4.  Exemption  from  Ordinary  Debts. 

Exemption  is  only  from  ordinary  debts  contracted  after  the 
date  of  its  beginning.  It  protects  the  homestead  property 
from  such  debts,  but  does  not  relieve  the  debtor,  either  di- 
rectly or  by  operation  of  law,  from  any  indebtedness  he  may 
have  incurred.  He  continues  liable  for  all  his  debts ;  and  they 
may  be  prosecuted  to  judgment  as  though  he  were  not  a 
householder  with  a  family,  and  as  though  no  homestead  law 
had  ever  been  enacted. 

No  state  attempts  by  homestead  legislation  to  exonerate 
the  debtor  from  the  duty  of  meeting  his  obligations.  Home- 
stead exemption  statutes  are  not  bankrupt  laws.  They  offer 
no  discharge.  Everywhere  the  debtor  may  be  sued  for  his 
ordinary  debts  as  well  as  for  any  others,  contracted  at  any 

1  Post,  ch.  VUL  s  Id.,  §§  1,  2,  4* 

3  Ch.  v:i. 


EXEMPTION   FEOM    ORDINARY   DEBTS.  d 

time,  and  judgment  recorded  against  him  "will  create  a  gen- 
eral lien  bearing  upon  all  his  real  estate  —  except  his  home- 
stead. 

In  most  of  the  states,  it  is  simply  hy  excepting  the  Jwmestead 
from  general  judgment  liens  for  ordinary  debts,  contraeled 
after  notice,  that  its  protection  is  effected.  The  law  docs  not 
inhibit  the  rendition  of  the  judgment,  but  saves  the  home- 
stead from  any  property  liability  resultant,  ^o  valid  writ 
can  be  issued  or  executed  against  the  favored  property.  The 
family  cannot  be  disturbed  or  deprived  of  the  home. 

In  some  states,  a  lien  upon  the  homestead  is  created  by  a 
general  judgment  for  personal  debt,  but  lies  dormant  during 
the  family  occupancy.  When  the  homestead  beneficiaries  have 
ceased  to  be  such,  it  wakes  to  life  and  may  be  enforced  against 
the  property  which  was  homestead.^  By  this  method  the 
family  enjoyment  of  the  home  is  secured.  Even  in  the  ex- 
ceptional instances  where  the  fee  may  be  sold  in  the  vindi- 
cation of  such  a  general  judgment  lien,  the  family  use  is 
reserved. 

Exemption  of  homesteads  from  forced  sale  for  any  debt  con- 
tracted does  not  exonerate  them  from  judgments  in  cases  ex 
delicto.  They  have  no  immunity  against  fines  imposed  by  the 
state  upon  their  owners,  prosecuted  to  judgment  and  execu- 
tion. "  Surely  it  would  be  contrary  to  the  theory  and  design 
of  the  homestead  laws,  which  are  said  to  be  founded  upon  con- 
siderations of  sound  public  policy  and  for  the  public  welfare, 
if  they  were  so  construed  as  to  interfere  with  the  administra- 
tion of  public  justice,  and  take  away  the  potent  means  of  pun- 
ishing crime.  The  public  welfare  is  best  promoted  by  the 
enforcement  of  the  laws,  and  one  of  the  most  potent  means  of 
their  enforcement  is  by  fines  imposed  for  their  violation.  It 
never  could  have  been  within  the  purview  of  the  constitution 
[framers]  in  enacting  a  homestead  law,  to  deprive  the  state  of 
the  means  of  punishing  offenders  against  its  laws  by  permit- 
ting such  offenders  to  claim  exemption  against  punishment 
for  a  violation  of  the  penal  laws  of  the  commonwealth."  ^ 

1  Kellerman  v.   Aultman,  30   Fed.  Gayle,  40  La.  Ann.  286 ;  Brandon  v. 

888 ;  McHugh  v.  Smiley,  17  Neb.  620,  Moore,  50  Ark.  247 ;  Jones  v.  Britton, 

624;    Hayden   v.   Slaughter,   43    La.  102  N.  C.  167;  Rogers  v.  Kimsey,  101 

Ann.  385 ;   8    So.    919 ;     Herbert    v.  N.  C.  559 ;  post,  ch.  X,  §  6. 

Mayor,  43  La.  Ann.  839 ;  Dennis  v.  -  VVhiteacre    v.    Rector,   29   Gratt 


10  LEADING-   PRINCIPLES. 

The  general  rule  is  that  judgments,  rendered  for  torts  and 
the  like,  fasten  a  lien  on  the  homestead  as  on  all  the  other 
property  of  the  wrong-doing  defendants.^  And  ordinary  debts 
contracted  by  borrowing  money  to  pay  for  the  homestead,  or 
for  its  improvement,  are  generally  collectible  from  that  prop- 
erty by  the  enforcement  of  the  general  judgment  lien.  This 
is  not  universally  the  case  —  some  states  allowing  no  execution 
of  judgment  unless  there  be  a  pre-existing  vendor's  lien  or 
other  specific  property  indebtedness. 

HoAvever,  where  the  statute  excepts  from  exemption  when 
debts  have  been  incurred  in  the  purchase  or  improvement  of 
the  homestead,  whether  there  was  a  specific  lien  created  or 
not,  a  personal  debt  so  incurred  may  be  prosecuted  to  judg- 
ment bearing  a  lien  on  the  homestead  enforceable  by  execu- 
tion.2 

§  5.  Notice  to  Creditors  Essential. 

The  justice  of  homestead  laws  could  not  be  vindicated,  were 
creditors  deprived  of  their  remedy  against  the  property  of 
their  debtors  without  notice.  Trusting  to  that  property  as  a 
common  pledge  when  giving  credit,  they  cannot  be  afterwards 
deprived  of  their  remedy  against  it  without  a  serious  impair- 
ment of  their  contract.  While  the  remedy  may  be  modified 
by  the  law-making  power,  it  cannot  be  so  shorn  as  virtually 
to  deprive  the  creditor  of  his  vested  rights.  It  was  on  this 
principle  that  the  state  constitutions  and  statutes  which  for- 
merly exempted  homesteads  from  liability  to  judgment  and 
execution  on  debts  antedating  their  adoption  or  enactment, 
were  declared  to  be  in  contravention  of  the  constitution  of  the 
United  States.  I^ot  only  the  divesting  of  existing  liens,  but 
the  withdrawal  of  the  remedy  for  collecting  ordinary  debts 
from  property  liable  at  the  date  of  the  contract,  was  held  un- 

714,  111;  McClure  v.  Braniff,  75  la.     v.  Henson,  29  Ga.  345 :  Parker  v.  Sav- 
38.  age,  6  Lea,  406 ;  Kenj^ou  v.  Gould,  61 


1  McLaren  v.  Anderson  (Ala.),  8  So, 
188;  Williams  v.  Bowden,  69  Ala, 
433;  Vincent  v.  State,  74  Ala.  274 
Tate  V.  Laforest,  25  La.  Ann.  187 
Donaldson  v.  Banta  (Ind.),  29  N.  E, 
362 ;  Thompson  v.  Ross,  87  Ind.  156 
Nowling  V.  Mcintosh,  89  Ind.  593 
Smith  V.  Ragsdale,  36  Ark.  297 ;  Davis 


Pa.  St.  292 ;  Wade  v.  Kalbfleisch,  58 
N.  Y.  282 ;  Bai'ton  v.  Mill,  78  Va.  468. 
ComjJare  Gill  v.  Edwards,  87  N.  C. 
77 ;  Conroy  v.  Sullivan,  44  111.  451 ; 
Smith  V.  Omans,  17  Wis.  395 ;  post, 
ch.  X,  §  8. 

■^Post,  ch.  XI,  §§2,  3,  4. 


NOTICE   TO   CKEDITOES    ESSENTIAL.  11 

constitutional,  because  the  creditors  were  not  tlien  affected 
with  notice.' 

Thus,  not  only  the  justice  but  the  constitutionality  of  home- 
stead exemption  depends  upon  notice  given  anterior  to  the 
creation  of  the  debt.  Good  faith  is  not  violated  by  statutory 
protection  of  the  family  home  from  execution,  if  the  creditor 
is  notified  before  trusting  his  debtor  that  he  cannot  look  to  it 
for  his  pay.  The  effect  of  the  notice  is  to  except  the  home- 
stead from  the  rest  of  the  debtor's  property  so  that  it  does 
not  become  a  part  of  the  common  pledge. 

Notice  is  ahsolutely  essential  in  all  the  states.  It  is  given  in 
different  ways.  The  promulgation  of  the  homestead  law  is 
essential  everywhere.  The  recording  of  the  title  is  required  in 
some  states  as  notice.  The  inscription  of  the  word  Jiomestead 
on  the  margin  of  the  recorded  title  is  further  required  in  two 
or  three  states.  The  filing  of  a  "Declaration  of  Homestead" 
in  a  designated  public  office  is  another  method.  Actual  occu- 
pancy by  the  householder  and  his  family  is  notice  in  several 
states,  and  it  is  usually  required  as  additional  to  the  record 
notices  in  the  states  prescribing  them.^ 

While  the  legislature  may  adopt  any  proper  form  of  adver- 
tising to  the  public  that  those  who  trust  cannot  look  to  home- 
steads for  pay,  it  cannot  dispense  with  notification  and  yet 
divest  the  creditor  of  his  remedy.  All  the  reasons  adduced 
by  the  federal  supreme  court,  to  show  that  that  remedy  was 
so  far  denied  as  to  impair  contract  when  debts  anterior  to  the 
adoption  of  the  state  constitution  or  the  enactment  of  the 
statute  granting  exemption  were  declared  non-collectible  from 
the  homestead,  apply  perfectly  to  all  cases  of  exemption  with- 
out notice. 

Everybody  is  presumed  to  take  cognizance  of   the   legal 

1  Edwards  v.  Kearzey,  96  U,  S.  595 ;  U.  S.  1 ;  Boreham  v.  Byrne,  83  Cal. 
Gunn  V.  Barry,  15  Wall.  610 ;  Lamb  23 ;  Lachman  v.  Walker,  15  Nev.  422 ; 
V.  Chamness,  84  N.  C.  379 ;  Russell  v.  Murphy  v.  Hunt,  75  Ala.  438,  Ul; 
Randolph,  26  Gratt.  705;  Fowler  v.  Linsey  v.  McGannon,  9  W.  Va.  154; 
Wood,  31  S.  C.  398 ;  Clark  v.  Trawick,  Taylor  v.  Saloy,  38  La.  Ann.  62 ;  Ten- 
56  Ga.  359 ;  Pennington  v.  Seal,  49  nent  v.  Pruitt,  94  Mo.  145 ;  Griswold 
Miss.  528 ;  First  N.  Bank  v.  HoUins-  v.  Johnson,  22  Mo.  App.  466 ;  Cheney 
worth,  78  la.  575 ;  Squire  v.  Mudgett,  v.  Rodgers,  54  Ga.  108 ;  Mills  v.  Spauld- 
61  N.  H.  149 ;  post,  ch.  X,  §§  1-4.  ing,  50  Me.  57 ;  post,  ch.  V,  g§  7,  8. 

2  Goodwin  v.  Colo.  Mort.  Co.,  110 


12  LEADING    PRINCIPLES. 

notice,  and  therefore  he  who  gives  credit  is  held  to  have  done 
so  knowing  that  the  homestead  is  inviolable.  The  presump- 
tion of  knowledge,  like  many  other  legal  presumptions,  is 
violent  in  many  cases;  the  creditor  may  not  surely  know 
whether  his  debtor's  family  residence  has  been  validly  made 
a  homestead,  or  whether  certain  acts  or  omissions  have 
amounted  to  abandonment;  but  what  better  way  of  informing 
the  public  can  be  devised  than  those  above  mentioned?  AVhat 
absolutely  perfect  plan  can  be  invented  to  guard  against  fraud, 
double-dealing  and  uncertainty?  The  notice  necessarily  is 
general,  and  particular  cases  of  wrong  cannot  all  be  anticipated 
by  the  legislator.  The  presumption  is  that  notice  reaches  and 
informs  all.  And  the  justice  of  homestead  exemption  is  vindi- 
cated by  showing  that  the  protected  property  never  becomes 
liable  to  notified  creditors  —  never  susceptible  of  lien-bearing 
under  judgments  for  ordinary  debts  contracted  with  notice. 

§  6.  States,  as  Creditors. 

The  states  and  the  general  government  stand  on  the  same 
footing  with  private  persons  when  they  are  simply  creditors. 
Justice  Matthews,  as  organ  of  the  federal  supreme  court,  after 
showing  that  the  state  courts  had  been  "  practically  unani- 
mous "  in  holding  that  exemption  bars  the  state  as  creditor, 
put  the  federal  government  in  the  same  position.  It  was  de- 
cided that  it,  on  a  judgment  for  an  ordinary  debt,  cannot  seize 
and  sell  a  homestead  ^vhich  is  exempt  by  the  law  of  the  state 
where  it  is  situated ;  "  that  the  exemptions  from  levy  and  sale 
under  executions  of  one  class  [of  judgments]  apply  equally  to 
all,  including  those  on  judgments  recovered  by  the  United 
States."  ^  And  there  are  prior  decisions  substantially  in  ac- 
cord.-^ 

In  the  case  first  above  cited.  Justice  Matthews  suggested, 
in  the  opinion,  that  the  exemption  laws  of  the  states  are  not 
laws  of  the  United  States  unless  made  such  by  congress ;  and 
he  then  entered  into  the  inquiry  wdiether  the  United  States 
had  adopted  the  homestead  act  under  consideration  so  as  to 

1  Fink  V.  O'Neil,  106  U.  S.  273.  States,  0  Wall.  655 ;  United  States  v. 

2  United  States  v.  Railroad  Co.,  105  Knight,  14  Pet.  301 ;  Beers  v.  Haugh- 
U.  S.  263;  United  States  v.  Thomp-  ton,  9  Pet.  329.  Compare  United 
son,  93  U.   S.  586 ;  Green  v.  United  States  v.  HovvelJ,  4  Hughes  C.  C.  483. 


STATES,  AS    CREDITORS.  13 

be  bound  by  it.  The  conclusion,  however,  was  the  broad  one 
first  above  stated. 

Distinction  must  be  drawn  between  the  government's  posi- 
tion as  an  ordinary  creditor,  and  that  as  a  suitor  enforcing 
governmental  powers.  "Statutes  which  derogate  from  the 
powers  and  prerogatives  of  the  government,  or  tend  to  dimin- 
ish or  restrain  any  of  its  rights  or  interests  [as  a  government], 
do  not  a})ply  to  it  unless  it  is  expressly  named."  ^  And  it  is 
manifestly  true  that  the  express  mention  of  the  general  gov- 
ernment in  a  state  statute  would  not  enable  a  state  legislature 
to  "derogate  from  the  powers  and  prerogatives"  of  that  gov- 
ernment, unless  congress  should  adopt  the  law ;  —  and  not  then 
unless  the  matter  is  within  the  authority  of  congress. 

States  cannot  pass  exemption  laws  that  cripple  the  federal 
government  in  the  exercise  of  its  police  powers  or  any  other 
of  like  character.  In  other  words,  it  has  been  very  well  settled 
(by  decisions  not  on  homestead  exemption),  that  the  states 
have  no  authority  to  control  the  laws  of  congress  to  carry 
into  effect  the  powers  vested  in  the  general  government.^ 

The  ancient  rule,  that  general  statutes  do  not  bear  upon 
the  king  in  the  absence  of  express  or  irresistibly  implied 
words  to  include  him,  was  not  applicable  to  those  enacted  for 
the  public  good,  like  our  family-protecting  statutes.  That 
rule  recognized  statutes  as  made  for  subjects  and  not  for  the 
sovereign.  Our  general  government  exercises  sovereign  pow- 
ers, but  its  position  is  yery  different  from  that  of  a  monarch 
ruling  by  an  assumed  divine  right  over  subjects  held  to  obe- 
dience. To  a  degree  it  is  true  here  that  our  government  can- 
not be  deprived  of  a  right,  privilege  or  interest  by  the  impli- 
cations of  a  statute ;  certainly  not,  by  even  express  statutory 
provisions,  when  its  rights  and  privileges  are  under  the  police 
power.     The  rule  has  been  learnedly  treated  by  the  courts.^ 

1  United  States  v.  Hevron,  20  Wall,  bins  v.  Commissioners,  16  Pet.  435 ; 
251;  Savings  Bank  v.  United  States,  The  Collector  v.  Day,  11  Wall.  113; 
19  Wall.  228,  239 ;  Dwarris,  p.  523 ;  United  States  v.  Railroad  Co.,  17 
Sedgw.  Stat  &  Const.  L.,  pp.  105,  395 ;  Wall.  322 ;  Bank  of  U.  S.  v.  Halstead, 
Boyle  V.  Zacharie,  6  Pet.  659 ;  Way-  10  Wheat.  51 ;  Beers  v.  Haughton,  9 
man  v.  Southard,  10  Wheat.  1.  Pet.  329. 

2  McCuUoch  V.  Maryland,  4  Wheat.  » Commonwealth  v.  Ford,  29  Gratt. 
316 ;  Weston  V.  Charleston,  2  Pet.  449 ;  683,  CS7,  citing  Broom's  Legal  Max- 
Crandall  v.  Nevada,  6  Wall.  35 ;  Dob-  ims,  76,  77 ;  United  States  v.  Herrou, 


14  LEADING   PRINCIPLES. 

The  governmental  prerogatives  of  a  state  are  as  sacred  as 
those  of  the  United  States ;  but,  like  the  latter,  when  a  state 
is  a  creditor  it  stands  with  other  creditors  and  is  cut  off  by 
exemption  when  not  excepted  from  the  general  provisions.^ 

There  seems  to  be  no  good  reason  against  this  proposition. 
The  state  is  presumed  to  have  notice  of  the  homestead  law, 
to  know  when  exemption  begins,  to  trust  the  debtor  after- 
wards with  full  knowledge  that  the  homestead  stands  as  no 
common  pledge  for  the  debt.  All  corporations  are  affected 
by  the  notice.  Why  should  not  artificial  persons  be  cut  off 
with  other  creditors?  The  state  is  no  sovereign  in  such  a  sense 
as  described  in  some  of  the  above  quoted  decisions ;  the  fed- 
eral government  is  no  such  sovereign ;  American  citizens  do 
not  derive  their  rights  from  any  government :  so  the  reasons 
given  to  sustain  the  theory  that  the  government  is  not  affected 
by  a  statute  unless  expressly  named,  are  not  manifestly  ap- 
plicable. It  is  only  when  some  governmental  power  or  right 
is  molested  that  the  rule  requiring  expression  applies.  As  a 
mere  creditor  upon  contract,  a  state  or  the  national  govern- 
ment is  on  the  same  footing  as  any  other  creditor.  This  doc- 
trine is  now  generally  conceded. 

§  7.  Liability  for  Liens. 

The  homestead  is  not  released  from  any  debt  which  it  owes ; 
from  any  obligation  which  it  has  incurred  and  w^hich  rests 
upon  it  as  a  tfimg  indebted  by  fiction  of  law.  A  lien,  mort- 
gage, or  any  liability,  conventional  or  created  by  operation  of 
law,  which  has  been  attached  to  it,  remains  upon  it  unaffected 
by  homestead  exemption.  Whether  such  lien  or  property  in- 
debtedness existed  before  the  homestead  character  was  ac- 
quired, or  was  put  upon  the  property  afterwards,  the  result  is 
the  same. 

20  Wall.  251,  2QS;  Saunders  v.  Com-  v.  Rossiter,  4  Cow.  143 ;  Common- 
monwealth,  10  Gratt  494,  J^9Q;  Lev-  wealth  v.  Baldwin,  1  Watts,  54 ;  Lott 
asser  v.  Washburn,  11  Gratt.  572,  677;  v.  Brewer,  64  Ala.  287 ;  Brooks  v. 
Commonwealth  v.  Cook,  8  Bush,  220 ;  State,  54  Ga.  36. 
Whitacre  v.  Rector,  29  Gratt.  714 ;  >  State  v.  Pitts,  51  Mo.  133 ;  Wildes 
Bacon's  Ab.,  Prerogative  E.  p.  92 ;  v.  Vanvoorhis,  15  Gray.  139 ;  Rich- 
State  V.  Kinne,  41  N.  H.  238 ;  United  ards  v.  Chace,  2  Gray,  383.  See.  Corn- 
States  V.  Hoar,  2  Mason,  311 ;  United  monwealth  v.  Cook,  8  Bush,  225 ; 
States  V.  Hewes,  Crabbe,  307 ;  People  Hume  v.  Gossett,  43  111.  297. 


LIABILITY   FOR   LIENS.  15 

The  creditor  certainly  has  a  vested  right  to  his  mortgage  or 
other  form  of  lien  ^Yhich  no  legislature  can  divest  by  the  pas- 
sage of  a  homestead  statute.  His  remedy  may  be  qualified  so 
as  to  require  him  to  exhaust  other  property  first  when  the 
mortgage  covers  other  property,  but  his  right  in  the  home- 
stead, his  jus  ad  re7)i,  cannot  be  denied.^ 

To  this  rule  of  property-indebtedness  there  is  little  excep- 
tion. It  has  been  held,  however,  in  a  state  where  the  home- 
stead system  is  declared  by  its  highest  court  to  be  '"  unlike  that 
in  most  of  the  other  states,"  that  the  lien  of  a  general  judgment, 
which  is  attached  to  realt}^  before  homestead  has  been  declared 
or  created,  cannot  be  enforced  till  the  homestead  right  shall 
have  been  terminated ;  that  the  lien  exists  in  full  force  and 
validity  all  the  while,  and  will  take  precedence  over  a  trust 
deed  of  later  date  when  it  comes  to  be  vindicated  after  the 
homestead  has  been  abandoned  or  otherwise  has  ceased  to 
exist.^ 

This  doctrine  is  out  of  harmony  with  the  general  rule,  and 
it  seems  manifestly  prejudicial  to  the  lien  holder,  so  crippling 
his  remedy  as  to  seriously  impair  his  right.  His  judgment 
lien  is  thus  postponed  for  an  indefinite  number  of  years,  pos- 
sibly for  the  period  of  his  whole  life.  His  property  in  the 
judgment  is  so  diminished  that  he  could  not  sell  it  for  half  its 
original  worth.  His  remedy  is  so  seriously  impaired  that  there 
is  good  ground  for  doubting  the  constitutionality  of  any  leg- 
islative provision  that  thus  affects  his  lien  after  it  has  fastened 
upon  the  land. 

There  w^ould  be  as  much  reason  for  allowing  homestead  to 
thus  affect  a  mortgage  or  any  conventional  lien  resting  on 
land  before  it  becomes  a  homestead.  Such  specific  liens  are 
no  more  property  rights  than  general  judgment  liens. 

The  exceptional  doctrine  above  noticed  has  not  uniformly 

1  Bunn  V.  Lindsay,  95  Mo.  250,  25S;  Butler,  1  Va.  L.  J.  120.  See  Va.  Code 
McCauley's  Estate,  50  Cal.  544 ;  Roupe  (1887),  §  3649,  of  which  the  court,  in 
V.  Carradine,  20  La.  Ann.  244 ;  Ely  v.  Blose  v.  Bear,  said  tliat  whatever 
Eastwood.  26  111.  108 ;  Burnside  v.  may  be  its  effect  on  future  cases,  its 
Terry,  51  Ga.  186 ;  Tuttle  v.  Howe,  14  provision  was  not  in  existence  when 
Minn.  145,  152.  this  case  arose.     It  is   to  be  hoped, 

2  Blose  V.  Bear,  87  Va.  177;  Scott  v.  therefore,  that  future  cases  will  be 
Cheatham,  78  Va.  83 ;  Lindsay  v.  brought  into  line  with  the  prevalent 
Murphy,  76  Va.  428 ;  Richardson  v.  system  respecting  things  indebted. 


16  LEADING   PRINCIPLES. 

been  recognized  in  the  state  of  the  cited  decisions.  It  has  been 
held  in  a  case  more  recent  than  any  of  those  above  cited  ex- 
cept the  very  latest,  that  when  a  judgment  has  become  a  lien 
upon  land  before  the  owner  is  entitled  to  a  homestead,  it  is 
paramount  to  a  claim  of  homestead  subsequently  made.' 

§  8.  Prevention  of  Property-Indebtedness. 

Prevention  —  not  cure  —  is  the  legislator's  purpose  as  to 
homestead  property-indebtedness.  He  cannot  cure;  but  he 
has  remedies  at  his  command  to  prevent  the  plague  or  hinder 
it.  As  already  shown,  general  judgments  for  ordinary  debts 
are  prevented  from  bearing  any  lien  upon  the  homestead,  so 
that  property-indebtedness  cannot  be  created  by  them  in  favor 
of  notified  creditors  personal  or  governmental. 

Conventional  liens  cannot  be  prevented  readily  without  a 
shock  to  public  interests,  and  the  states  generally  do  not  for- 
bid their  being  fastened  upon  the  homestead.  But  they  are 
hindered;  impediments  are  thrust  in  the  way.  The  married 
owner  is  restrained,  by  most  of  the  statutes,  from  either  mort- 
gaging or  selling  his  homestead  property  by  his  sole  deed. 
His  wife  has  the  veto  power.^ 

Almost  as  generally,  the  husband  may  prevent  the  wife 
from  selling  or  mortgaging  by  refusing  to  join  in  the  aliena- 
tion when  she  is  the  owner.  These  provisions  guard  against 
the  improvidence  of  either  spouse  by  making  the  one  a  check 
upon  the  other;'  and,  as  it  is  many  times  more  difficult  for 
two  to  act  together  than  for  one  to  act  alone,  the  chances  of 
keeping  the  home  for  the  children  are  greatly  enhanced  by 
these  impediments. 

How  is  it  that  the  legislator  can  invade  private  rights  and 
create  such  restraint  upon  alienation?  He  does  not  invade 
them  —  does  not  create  the  restraint.  He  grants  exemption 
on  conditions;  and  one  of  the  conditions  is  that  the  owner 
shall  consent  to  this  restraint.  There  is  consent  implied  when 
the  owner  makes  declaration  of  homestead,  or  in  any  pre- 
scribed legal  way  accepts  the  benefit  of  exemption. 

The  "  homestead  right,"  or  "  privilege,"  or  "  incumbrance," 
or  "  estate,"  bestowed  on  the  wife  (or  the  wife  and  children), 

iKennerly  v.  Swartz,  83  Va.  704,        "^Post,  ch.  XII,  §  5. 
citing  Const,  of  Va.,  art.  IX,  §  3.  ^Id.,  %%  2,  9. 


PBEVENTION  OF  PROPERTY-INDEBTEDNESS.  17 

when  the  declaration  is  filed,  or  the  exempt  character  of  the 
homo  property  created,  is  bestowed  by  the  husband  and  not 
by  the  state.  It  is  done  by  the  acceptance  of  the  condi- 
tions of  the  exemption  grant.  He  thus  voluntarily  relin- 
quishes his  lordship  over  his  castle  so  far  as  the  wife  has 
come  to  share  its  disposition  with  hira,  l^ow  she  may  keep  a 
roof  over  her  children's  heads  despite  his  speculative  turn  and 
despite  the  sheriffs  hammer.  She  is  not  obliged  actively  to 
resist  either,  for  she  effects  the  purpose  simply  by  withholding 
her  hand. 

The  end  sought  by  the  law-makers  is  the  keeping  of  the 
home  in  the  family  —  the  meeting  of  the  mischief  of  house- 
hold disintegration.  The  means  are  not  commendable  in  every 
instance,  but  doubtless  this  restraint  upon  alienation  and  in- 
cumbrance is  almost  as  effective  to  promote  the  conservation 
of  family  homes  as  the  positive  inhibition  of  general  judgment 
liens  in  personal  suits  for  debt. 

In  states  where  the  acceptance  of  the  exemption  grant  is 
upon  the  condition  that  the  owning  marital  partner  shall  give 
an  equal  interest  to  the  other,  so  that  they  become  joint  ten- 
ants, the  effect  upon  the  family  permanency  is  the  same  as  that 
above  discussed.  There  is  no  denial  of  the  right  to  sell  (except 
in  one  state),  if  both  husband  and  wife  agree  to  do  so.^  Their 
conveyance  needs  the  court's  approval  under  an  unusual  stat- 
ute requiring  a  judicial  proceeding  to  dedicate  the  homestead 
in  the  first  instance.-  Husband  and  wife  may  mortgage  or 
otherwise  incumber  their  homestead,  by  joining  together  to 
do  so ;  ^  but  where  there  are  restrictions  upon  sale,  they  usually 
apply  also  to  the  creation,  of  liens  by  married  persons. 

The  reason  why  homesteads  are  allowed  to  be  saddled  with 
property  debts  and  allowed  to  be  sold  or  abandoned,  by  the 
joint  action  of  husband  and  wife,  is  that  if  parents  agree 
upon  any  such  disposition  of  the  homestead,  they  may  be  pre- 1 
sumed  to  act  for  the  best  interests  of  their  children,  or  for 
their  own  best  good  if  they  are  childless.  Were  prevention 
carried  so  far  as  to  preclude  such  joint  action,  the  homestead 

iWoolcut  V.   Lerdell,  78  la.   668;     1114;  Witherington  v.  Mason,  86  Ala, 
Weigeman  v.  Marsot,  13  Mo.  App.  576 ;     345 ;  post,  ch.  XII,  §§  1-3. 
Dudley  v.  Shaw,  44  Kas.  683 ;  24  P.        2  Lincli  v.  Mclntyre,  78  Ga.  309. 

3Ch.  XII,  §4. 


18  LEADING    PRINCIPLES. 

protection  would  become  a  detriment  rather  than  a  benefit  to 
the  family,  in  many  instances ;  and  the  property  would  bo  so 
far  taken  out  of  commerce  that  the  state  would  not  have  its 
welfare  promoted  by  the  homestead  system  without  a  serious 
drawback. 

Restraint  of  testamentary  disposition  is  another  means  of 
preventing  the  family's  deprival  of  the  homestead.^ 

Prevention,  as  a  means  of  saving  the  home,  has  been  car- 
ried so  far  as  to  exempt  "from  all  liability,"  so  that  a  judg- 
ment for  tort  has  been  held  not  enforceable  against  the  home- 
stead.- And  even  the  interdiction  of  "  any  process  whatever  " 
has  been  attempted.  No  doubt  a  legislature  may  regulate 
the  jurisdiction  of  courts,  but  there  must  be  a  limit  to  its 
right  to  curtail  it  —  else  all  process  might  be  taken  from  the 
courts.  It  is  certain  that  the  legislative  department  cannot 
obliterate  the  judicial  altogether  without  violation  of  the  con- 
stitutional distribution  of  governmental  powers. 

If  the  denial  of  any  process  against  homesteads  means  that 
the  state  or  general  government  cannot  reach  such  property 
in  executing  a  general  judgment  against  the  owner  for  fines, 
or  under  a  judgment  for  forfeiture  or  confiscation,  or  in  vin- 
dication of  any  right  that  may  give  rise  to  a  ]n'oceeding  in 
rem,  it  would  seem  that  the  police  and  other  governmental 
powers  (noticed  in  a  former  section)  would  be  seriously  im- 
paired. 

May  not  assessments,  for  street  improvements,  sewers,  etc. 
(which  are  not  taxes  but  forced  contributions),  be  collected 
from  the  homestead  property?  May  not  federal  remedies 
directly  against  property  be  enforced?  May  not  nuisances  be 
abated?  Think  of  a  householder  having  his  property  im- 
proved at  the  expense  of  his  neighbor !  Suppose  the  general 
government  powerless  to  pronounce  the  condemnation  of  an 
illicit  distillery  upon  a  homestead !  Imagine  the  case  of  a 
homestead  holder  who,  with  impunity,  indulges  the  fancy  of 
cultivating  malaria  on  his  exempt  city  lot  by  maintaining  a 
putrid  pond  to  breed  laderia! 

1  See  ch.  XIV.  Edwards,  87  N.  C.  77 ;  Dellinger  v. 

2  Conroy  v,  Sullivan,  44  111.   451 ;     Tweed,  66  N.  C.  206. 
Smith  V.  bmans,  17  Wis.  *395  ;  Gill  v. 


THE    GOVERNING    LAW.  19 

§  9.  The  Governing  Law. 

The  rights  and  relations  of  creditor  and  debtor,  with  re- 
spect to  homestead  exemption,  are  governed  by  the  law  in 
force  at  the  date  of  the  contract.  "  After  a  debt  is  contracted, 
the  legislature  cannot  diminish  the  rights  of  the  creditor,  nor 
take  from  the  debtor  property  previously  exempt  to  apply  on 
that  particular  debt."  ^  This  is  true  as  to  every  remedy  that  is 
essential  to  the  value  of  any  stipulation  to  be  enforced.  The 
contract  between  principal  and  surety  forms  no  exception  to 
the  rule.  If  there  be  a  breach  of  the  contract  so  as  to  give 
cause  of  action,  the  question  of  exemption,  after  judgment, 
with  reference  to  execution,  would  be  determined  by  the  law 
existing  when  the  contract  was  made  —  not  when  the  breach 
occurred.^ 

The  amount  of  exemption  is  governed  by  the  law  existing 
when  the  debt  was  contracted.*  If  a  lien  has  attached  before 
residency  acquired,  it  holds  good  where  exemption  begins 
with  occupancy.'* 

Not  only  the  amount  exempted  in  quantity  and  value,  but 
the  right  of  exemption  itself,  as  against  creditors,  is  governed 
by  the  law  existing  at  the  time  the  debt  was  contracted ;  as 
against  sureties,  by  the  law  existing  when  the  liability  was 
assumed.  The  novation  of  the  debt  at  a  subsequent  date  does 
not  affect  the  exemption.  A  new  liability,  succeeding  the 
discharge  of  the  original  obligation,  is  governed  by  the  law 
existing  when  it  was  assumed.^ 

Whatever  of  land  or  value  was  liable  at  the  time  the  debt 

iDewitt  V.  Sewing  Machine  Co.,  17    iamson,  65  Ala,  439;  Keel  v.  Larkin, 


Neb.  533  (citing  Dorrington  v.  Myers, 
11  Neb.  388;  Bills  v.  Mason,  42  la 
329 ;  Warner  v.  Cummock,  37  la.  642) 
McHugh  V.  Smiley,  17  Neb.  620 
Mooney  v.  Moriarity,  36  111.  App.  175 


72  Ala.  493 ;  Kelly  v.  Garrett,  67  Ala. 
304 ;  Blackwood  v.  Van  Vleet,  11  Mich. 
252 ;  Aycock  v.  Martin,  37  Ga.  124. 

4  Murphy  v.    Hunt,   75    Ala.    438 
(lien   attached  while  the  owner  of 


Henson  v.  Moore,  104  111.  403.  the  homestead  was  a  non-resident) ; 

2  Bryant  v.   Woods,   11   Lea,  327;  McCrary  v.  Chase,  71  Ala.  540  (to  the 
Drinkwater  v.  Moreman,  61  Ga.  395.  same  effect :   overruling  Watson  v. 

3  Powe    V.   McLeod,   76    Ala.    418.  Simpson,  5  Ala.  233). 

Thus,  eighty  acres  were  exempt  un-  5  Keel  v.  Larkin,  72  Ala.  493;  Fearn 
der  the  Alabama  constitution  of  1868  v.  W^ard,  65  Ala.  33 ;  Muncbus  v. 
up  to  the  act  of  April  23, 1873.  Coch-  Harris,  69  Ala.  506 ;  Slaughter  v. 
ran  v.  Miller,  74  Ala.  50 ;  Randolph  v.  McBride,  69  Ala.  510 ;  Carlisle  v.  God- 
Little,  62  Ala.  397 ;  Giddens  v.  Will-  win,  68  Ala.  137. 


20  LEADING    PRINCIPLES. 

was  contracted  remains  so  when  the  debt  is  sought  to  be 
collected.  A  subsequent  law  enlarging  the  quantity  of  realty, 
measured  by  acres  or  money,  which  constituted  the  homestead 
when  the  debt  was  contracted,  would  not  curtail  the  credit- 
or's remedy  in  proportion  to  the  addition.^ 

Upon  a  change  of  constitution,  the  homestead  rights  of 
debtors  and  the  vested  rights  of  creditors,  existing  under  the 
old,  are  not  displaced  by  the  new  constitution.^  But  a  right 
to  claim  homestead  under  a  constitution  or  statute  is  lost  bv 
repeal  of  the  law,  if  not  claimed  before.'' 

The  rule  is  that  the  homestead  law  in  force  at  the  time  of 
the  making  of  a  contract  governs  in  subsequent  proceedings 
concerning  the  contract.*  If,  however,  a  new  law  has  been 
passed,  providing  for  a  method  of  procedure  different  from 
the  old,  there  is  no  apparent  reason  why  the  later  should  not 
be  employed  if  no  rights,  remedial  or  other,  are  infringed  so 
as  to  lessen  the  value  of  rights  acquired  under  the  contract. 

Where  the  limitation  of  homesteads  had  been  different 
when  a  widow's  right  to  one  arose  on  the  death  of  her  hus- 
band, from  what  it  was  under  a  new  statute  repealing  the 
former,  her  allotment  was  according  to  the  old  law,  but  the 
proceedings  under  the  new.^ 

The  widow's  right  to  homestead  depends  upon  the  law 
granting  it  at  the  time  of  the  death  of  her  husband.  If  such 
law  made  the  declaration  of  homestead  essential,  and  the  hus- 
band declared  none,  it  was  held  that  the  widow  cannot  claim, 
, though  a  later  law  authorize  her  to  do  so.^     On  the  other 

1  Cochran  v.  Miller,  74  Ala.  50 ;  78  Ala.  376 ;  Boiling  v.  Jones,  67  Ala. 
Keel  V.  Larkin,  73  Ala.  493;  Wright    508. 

V.  Straub,  64  Tex.  64 ;  Lowdermilk  v.  6  The  Tennessee  code  of  1858  said : 

Corpening,  92  N.  C.  333.    See  ch.  VII,  "  The  homestead  exemption  in  the 

§  7,  and  the  authorities  there  cited.  hands  of  a  husband  shall,  upon  his 

2  Gerding  v.  Beall,  63  Ga.  561.  death,  go  to  his  widow  during  her 

3  Clark  V.  Snodgrass,  66  Ala.  233.        natural  life  or  widowhood."    Later 
^Spitley  V.  Frost,  15  Fed.  299;  Dor-    acts,  1870  (2d  ses.),  ch.  80;  1879,  ch. 

rington  v.  Myers,  11  Neb.  388.  171,  give  homestead  to  the  widow. 

SDossey  v.  Pitman,  81   Ala.   381;  Threat  v.  Moody,  87  Tenn.  143.     Dis- 

Clark  V.  Spencer,  75  Ala.  49 ;  Rotten-  tinguished:    Vincent    v.   Vincent,    1 

berry  v.  Pipes,  53  Ala.  447 ;  Taylor  v.  Heisk.  343 ;  Merriman  v.  Lacefleld,  4 

Taylor,  53  Ala.  135 ;  Taylor  v.  Pettus,  Heisk.  209.   See  Langford  v.  Lewis,  9 

53  Ala.  287 ;  Alabama  Code  of  1876,  Bax.  127. 
§§  2827,  284]  ;  Skinner  v.  Chapman, 


SUMMARY    OF    LEADING    PRINCIPLES.  21 

hand,  a  change  of  statute  cannot  affect  a  widow's  vested  home- 
stead right,^ 

The  rights  of  minors  are  governed  by  the  law  existing  when 
the  parent  died,  from  whom  the  rights  are  derived.^  The 
tutor  of  a  ininor,  appointed  and  qualified  in  1877,  filed  his 
final  account,  in  which  he  was  shown  to  be  indebted  to  the 
minor  in  1888.  There  was  judgment  against  him ;  but  he 
sought  to  enjoin  the  execution  of  the  judgment  against  his 
homestead,  under  the  exemption  act  in  force  at  the  time  of 
his  appointment.  The  constitution  that  was  adopted  two 
years  later  excepted  debts  contracted  or  liabilities  incurred 
in  a  fiduciary  capacity,  from  exemption.  As  the  tutor's  in- 
debtedness to  his  ward  was  not  ascertained  till  the  filing  of 
the  account,  and  did  not  arise  from  contract  with  the  minor 
but  from  legal  obligation ;  and  as  the  homestead  had  not  been 
previously  set  apart  and  registered  as  required  by  law ;  ^  and 
as  the  debt  was  contracted  in  a  fiduciary  capacity,  the  injunc- 
tion was  denied,  as  the  later  law  governed.^ 

Statutory  exemptions  and  privileges  are  granted  subject  to 
modification  and  repeal.  All  agreements  between  debtors 
and  creditors  are  presumed  to  have  been  made  with  knowl- 
edge of  the  controlling  power  of  the  legislature.  In  contem- 
plation of  law,  every  beneficiary  of  exemption  knows  that  the 
power  which  conferred  the  privilege  he  enjoys  may  recall  it 
at  will.  By  the  amendment  or  repeal  of  an  act,  no  vested 
right  is  divested,  and  no  obligation  of  contract  is  impaired ; 
the  legislature  violates  no  constitutional  provision.^ 

§  10.  Summary  of  Leading  Principles. 

1.  The  family  is  the  object  of  homestead  legislation  in  the 
interest  of  society  and  the  state. 

2.  The  mischief  which  the  law  meets  is  family  disintegra- 
tion ;  the  remedy  is  home  protection :  so,  in  the  application  of 
the  remedy  to  the  mischief,  doubtful  statutory  provisions 
should  be  liberally  construed. 

1  Register  v.  Hensley,  70  Mo.  189.  Bull  v.  Conroe,  13  Wis.  *233;  Harris 

2  Quinn  v.  Kinyon,  100  Mo.  551.  v.   Gleno,    56    Ga.    94 ;    Sparger    v. 

3  La.  Const,  of  1879,  arts.  219,  220 ;  Compton,  54  Ga.  185;  Dobbins  v. 
Act  14  of  1880.  First  N.  Bank,   112    111.  560;  Moore 

4  Piatt  V.  Sheriff,  41  La.  Ann.  856.  v.  Litchford,  85  Tex.  185;   Leak  v. 

5  Bolton  V.  Johns,  5  Pa.  St  145 ;  Gay,  107  N.  C.  468 ;  Cooley's  Const. 
Bleakney  v.  Bank,  17   S.  &   R  64;  Li m.,  p.  383,  §  479 ;  posf,  ch.  VII,  §  7. 


ZiJ  LEADING    PRINCIPLES. 

3.  The  remedy  is  threefold:  exemption  from  forced  sale 
for  ordinary  debts  contracted  after  notice,  restraint  upon  alien- 
ation by  the  owner's  sole  act,  and  inhibition  of  testamentary 
disposition. 

4c.  The  head  of  the  family,  owning  the  homestead,  is  pre- 
sumed to  assent  to  the  imposed  restrictions  in  consideration 
of  the  benefits  conferred. 

5.  The  law  neither  gives  nor  takes  away  title  from  the 
owner,  nor  affects  it  except  by  the  owner's  consent  evinced 
by  his  dedication  of  his  property  as  homestead,  or  by  his  be- 
coming the  head  of  a  family  occupying  it  —  thus  voluntarily 
placing  himself  under  the  law. 

6.  The  title  may  be  either  freehold  or  leasehold  or  merely 
equitable,  but  there  must  be  the  right  of  exclusive  possession. 
The  fee  may  be  voluntarily  sold  by  the  owner  w4th  the  concur- 
rence of  his  wife,  while  life  estate  or  estate  for  years  may  be 
retained — either  which  estate  will  support  the  homestead  right. 

Y.  The  wife's  and  the  minor  children's  present  interest  in 
the  homestead  (assented  to  by  the  husband-father  when  he 
accepted  the  homestead  conditions)  is  a  qiiasi-estate  which 
they  enjoy  but  cannot  convey,  and  which  cannot  be  separated 
from  the  owner's  title. 

8.  The  spirit  of  the  homestead  laws  favors  marriage  and 
opposes  divorce ;  favors  the  rearing  of  children  and  opposes 
their  disinheritance;  favors  the  widow  and  orphan  and  post- 
pones the  partition  of  the  homestead  among  heirs  while  any 
of  them  are  minors. 

9.  The  benefits  may  be  surrendered  by  the  husband  and 
wife,  who  may  sell  or  incumber  or  abandon  the  home ;  and, 
acting  together,  they  may  obliterate  the  qiiasi-esta,te  of  their 
minor  children  by  any  of  those  means. 

10.  The  benefits  are  accorded  on  conditions,  the  principal 
of  which  are:  family-headship,  ownership,  occupancy  and  dedi- 
cation. The  condition  of  occupancy  is  not  slavish  but  allows 
temporary  absence  with  intent  to  return. 

11.  The  state  may  modify  or  withdraw  the  benefits  which, 
though  accepted  by  the  beneficiary  upon  conditions,  are  not 
vested  rights  of  contract. 

12.  The  rights  of  the  beneficiary  are  governed  by  the  law 
in  force  when  they  were  acquired,  as  to  exemptions  and  lim- 
itations. 


SUMMARY    OF    LEADING    PRINCIPLES.  23 

13.  The  limitations  of  homestead  are  quantitative  or  mone- 
tary, or  both,  varied  in  quantity  between  urban  and  rural 
homesteads ;  and  there  is  no  exemption  of  any  excess. 

14.  Creditors,  giving  credit  after  notice  that  the  home  occu- 
pied by  the  debtor's  famil}'-  forms  no  part  of  the  security  for 
the  debt  when  prosecuted  to  judgment,  are  not  wronged  by 
the  exemption. 

15.  Political,  public  and  private  corporations,  and  all  artifi- 
cial persons,  when  in  the  capacity  of  creditors,  are  affected  by 
homestead  laws  precisely  as  other  creditors. 

16.  Creditors  may  look  to  the  homestead  for  its  purchase- 
money,  or  for  the  price  of  improvements  thereon ;  for,  ex- 
emption is  not  accorded  to  the  beneficiary  at  the  expense  of 
others. 

lY.  Creditors  may  enforce  against  the  homestead  any  lien 
bearing  upon  it  —  any  property-debt  of  the  homestead  itself  — 
since  exemption  has  reference  to  personal  debts  only. 

18.  Property  held  in  partnership,  joint-tenancy,  or  tenancy 
in  common,  and  any  undivided  interest,  may  be  the  subject  of 
exemption  though  not  susceptible  of  being  homestead. 

19.  Indivisible  home  property,  exceeding  the  maximum  of 
homestead  in  extent  or  value,  may  be  sold  by  order  of  court, 
and  the  proceeds  of  the  exempt  portion  may  be  invested  in  a 
new  homestead,  while  the  rest  of  the  proceeds  go  to  creditors. 

20.  Statutes  which  exempt  in  favor  of  poor  debtors  only, 
and  provide  for  impecunious  widows  and  orphans  only ;  which, 
though  called  homestead  laws,  merely  save  from  execution  a 
prescribed  value  of  realty  and  personalty,  are  not  all  in  ac- 
cordance with  the  foregoing  principles.  The  mischief  which 
they  seek  to  meet  is  poverty ;  the  remedy  is  the  reservation  of 
a  part  of  the  property  from  forced  sale,  or  a  part  of  its  proceeds. 

21.  Federal  homesteads,  donated  to  settlers  on  the  public 
domain,  are  governed  by  principles  peculiar  to  themselves, 
and  require  separate  treatment. 

22.  State  homestead  statutes  are  not  uniform ;  there  are  ex- 
ceptional provisions  to  which  some  of  the  above  stated  prin- 
ciples are  inapplicable. 

23.  Chattel  exemption  differs,  in  many  respects,  from  home- 
stead exemption,  as  to  its  leading  principles. 


CHAPTER  II. 


CONSTRUCTION. 


1.  Plain  Statutes. 

2.  Words  —  How  Constmed. 

3.  Uniform  Operation, 

4.  Liberal  Interpretation. 

5.  Policy  —  How  Far  to  be  Consid- 

ered. 

6.  Charitable  Grounds. 

7.  Common  right. 


Ruling  to  Prevent  Fraud. 
Restraint  Upon  Alienation. 
Law  of  Wife's  Property. 
Statutes  Not  Extended  by  Con- 
struction. 
Rival  "Equities." 
Conflicting  Interpretations. 


§  1.  Plain  Statutes. 

Homestead  statutes  are  subject  to  the  established  rules  of 
construction  applicable  to  all  statutes.  There  is  no  room  for 
construction  when  the  intention  of  the  legislature  is  so  ex- 
pressed as  to  raise  no  question  of  the  meaning.  The  rule  is 
that  courts  must  not  interpret  what  has  no  need  of  interpreta- 
tion.^ 

So  it  is  held  that  where  a  provision  of  a  statute  is  expressed 
in  clear,  precise  and  consistent  terms,  it  does  not  need  to  be 
expounded,  and  courts  are  not  permitted  to  go  beyond  it  in 
order  to  restrain,  elude  or  extinguish  it.^  It  is  not  to  be  con- 
strued either  strictly  or  liberally ;  not  to  be  construed  at  all, 
whether  it  be  in  a  homestead  statute  or  any  other.  Its  mean- 
ing is  upon  its  face,  presenting  no  problem  to  be  solved,  no 
obscurity  to  be  relieved,  no  difficulty  to  be  removed,  nothing 


1  Arthur  v.  Morrison,  96  U.  S.  108 ; 
Schooner  Paulina,  7  Cr.  52;  Benton 
V.  Wickwire,   54  N.   Y.   226-8;  Mc- 
Clusky   V.  Cromwell,   11  N.  Y.  601 ; 
People  V.  Schoonmaker,  63  Barb.  44 ; 
Schlegel  v.  Beer  Co.,  64  How.  (N.  Y.) 
196 ;  People  v.  Supervisors,  13  Abb. 
New  Cas.  421;    Clark  v.  Mayor,  29 
Md.  283 ;  Bonds  v.  Greer,  56  Miss.  710 
Fitzpatrick  v.  Gebhart,  7   Kas.  35 
Bosley  v.  Mattmgly,  14  B.  Mon.  72 
Bartlett   v.    Morris,  9    Porter,   266 


Logan  V.  Courtown,  13  Beav.  22; 
Kinderley  v.  Jarvis,  25  L.  J.  Ch.  541 ; 
Rex  V.  Commissioner,  6  Ad.  &  El.  17 ; 
Notley  V.  Buck,  8  B.  &  C.  164. 

2  Mallard  v.  Lawrence,  16  How. 
(U.  S.)  251 ;  Douglass  v.  Freeholders. 
38  N.  J.  L.  214 ;  Howard  Ass'n  Ap- 
peal, 70  Pa.  St.  344 ;  United  States  v. 
Fisher,  2  Cr.  358;  People  v.  New 
York  Ry.  Co.,  13  N.  Y.  78 ;  Canal  Co. 
V.  Railroad  Co.,  4  Gill  &  J.  152. 


WORDS HOW    CONSTRUED.  25 

to  be  interpreted :  so  a  bare  reading  of  the  statute  is  suffi- 
cient.^ 

Courts  are  not  to  be  influenced  by  their  own  views  of  ex- 
pediency or  the  wisdom  of  the  legislature,  or  even  by  their 
own  opinions  of  the  justice  of  an  enactment,  when  the  lan- 
guage of  the  statute  is  plain  and  the  intention  of  the  legisla- 
ture is  free  from  doubt.  They  have  no  right  to  have  any  judi- 
cial policy  relative  to  any  law.^ 

Of  the  rule  that  statutes  should  be  so  construed  as  to  give 
meaning  to  every  provision,  it  has  been  judicially  said :  "  We 
recognize  the  rule  as  valuable  in  aiding  the  court  to  discover 
the  legislative  purpose,  which  is  the  paramount  end  of  con- 
struction ;  but  it  is  not  permissible  to  absorb  the  statute  in 
the  rule,  nor  to  overturn  the  legislative  will,  that  the  rule 
may  live.  It  is  our  duty  to  look  at  the  statute  from  its  four 
corners ;  to  change  the  collocation  of  words  and  sentences  if 
necessary ;  to  consider  the  general  purpose,  if  that  be  clear ; 
to  look  to  the  history  of  legislation  on  the  subject,  and  if, 
within  the  worlds  of  the  statute  so  considered,  the  intent  can 
be  discovered,  to  give  it  effect."  ^ 

•    §  2.  Words  —  How  Construed. 

It  is  a  settled  rule  that  words  are  to  be  understood  in  a 
statute  in  their  ordinary  sense,  unless  a  different  shade  of 
meaning  is  thrown  upon  them  by  the  context.  Technical 
terms  are  taken  in  their  technical  sense.  When  the  import 
of  words,  either  ordinary  or  technical,  is  obvious,  there  is  no 
occasion  for  interpretation.* 

1  Ruggles  V.  Illinois,  108  U.  S.  526 ;  Sheley  v.  Detroit,  45  Mich.  431 ;  State 
United  States  v.  Hartwell,  6  Wall.  v.  Clark,  54  Mo.  17,  36;  State  v.  He- 
395 ;  United  States  v.  Wiltberger,  5  man,  70  Mo.  441 ;  Waller  v.  Harris, 
Wheat.  76;  Coffin  v.  Rich,  45  Me.  20  Wend.  562;  Jewell  v.  Weed,  18 
507 ;  Water  Com'rs  v.  Brewster,  42  Minn.  272 ;  Douglass  v.  Freeholders, 
N.  J.  L.  125 ;  Rudderow  v.  State,  31  38  N.  J.  L.  212 ;  York  Ry.  Co.  v. 
N,  J.  L.  512 ;  Pillow  v.  Bushnell,  5  The  Queen,  1  E.  &  B.  858 ;  Munic.  B. 
Barb.  156 ;  Sneed  v.  Commonwealth,  Society  v.  Kent,  L.  R.  9  App.  Cas. 
6  Dana,  339;    Cearfoss  v.  State,  42  273. 

Md.  406 ;  Denton  v.  Reading,  22  La.  3  Fitzgerald  v.  Rees,  67  Miss.  473, 

Ann.  607 ;  Ogden  v.  Strong,  2  Paine  477. 

584 ;  Learned  v.  Corley,  43  Miss.  687!  *  United  States  v.  Hartwell,  6  Wall. 

2  Hadden  v.  Collector,  5  Wall.  107 ;  395 ;  United  States  v.  Jones,  3  Wash. 
Reithmiller  v.  People,  44  Mich.  280;  209;  Parkinson  v.  State,  14  Md.  184; 


26  CONSTRUCTION. 

The  words  "  owned  "  and  "  occupied  "  have  clearly  defined 
meaning.  If  we  hear  a  man  say,  "  That  house  is  owned  bj 
me,  and  occupied  as  a  residence  by  myself  and  my  family," 
there  would  be  no  room  for  misunderstanding  him.  There 
are  many  other  words  and  phrases  of  frequent  occurrence  in 
the  various  homestead  statutes  which  are  entirely  free  from 
ambiguity  and  are  therefore  to  be  received  as  they  stand,  with- 
out any  construction  strict  or  liberal,  if  the  established  rules 
of  statutory  construction  are  applicable  to  the  legislation 
under  consideration.  "  Owned  "  cannot  mean  to  be  owned  in 
future ;  "  occupied  "  cannot  be  understood  as  intention  to  oc- 
cupy;  "  wife  "  is  not  a  term  applicable  to  a  divorced  woman; 
and  other  words,  frequently  occurring  in  homestead  statutes, 
are  equally  free  from  ambiguity. 

An  example  of  an  obscure  word,  as  distinguished  from  the 
plain  ones  "  owned  "  and  "  occupied  "  used  in  illustrating  above, 
may  be  found  in  a  homestead  statute  which  provides  that  a 
dwelling-house,  to  be  exempt  from  forced  sale  for  debt,  must 
be  used  or  Jcept  by  the  householder.  The  italicised  w^ord  is 
obscure;  for  it  may  m.QnjX\.j[)reserved,  so  that  this  condition  of 
homestead  privilege  would  be  that  the  householder  shall  pre- 
serve the  dwelling-house  —  not  that  he  shall  live  in  it  neces- 
sarily ;  or,  it  may  mean  that  he  shall  "  keep  house  "  therein, 
making  the  word  in  accord  with  the  preceding  one,  "  used," 
rather  than  an  alternate  condition. 

Interpretation  became  necessary.  It  was  held  that  there 
was  alternation;  that  one  of  two  conditions  are  necessary  to 
the  riffht  of  homestead  under  the  statute :  either  "  an  actual 
personal  use  "  of  a  dwelling-house,  as  a  family  home,  or  "an 
actual  keeping  of  it,"  for  a  family  home  with  the  present  right 
and  purpose  of  so  using  it.^ 

A  word  of  very  familiar  use,  and  ordinarily  free  from  ob- 
scurity, may  need  interpretation  when  employed  in  a  sentence. 
What  is  more  generally  understood   than  the  word  family? 

Allen's  Appeal,  99  Pa.  St.  196 ;  Green  513 ;  Engelking   v.   Von   Wamel,  26 

V.  Weller,  32  Miss.  650 ;  Vincent,  Ex  Tex.  469. 

parte,  26  Ala.   145 ;  Wetumpka  v.  i  Keyes  v.  Bump,  59  Vt.  395.    See 

Winter,  29  Ala.  651 ;  Waller  v.  Har-  Bugbee  v.  Bemis,  50  Vt.  216  ;  Spauld- 

ris,  20  Wend.  561 ;  Newell  v.  People,  ing  v.  Crane,  46  Vt.  292 ;   Beebe  v. 

7  N.  Y.  99 ;  Clark  v.  Utica,  18  Barb.  Griffiug,  14  N.  Y.  244. 

451 ;  Supervisors  v.   People,   7   Hill, 


UNIFORM    OPERATION.  27 

Yet,  as  found  in  the  different  homestead  statutes,  it  raay  mean 
the  householder  and  his  wife  and  children,  in  one  connection, 
while,  in  another,  it  may  be  applied  to  a  household  group  not 
united  by  ties  of  kindred.  It  has  had  the  first  meaning  as- 
signed it  for  the  most  part,  but  there  are  decisions  which  rec- 
ognize the  other;  the  former  under  one  form  of  statute  —  the 
latter  under  another,  so  that  there  is  not  necessarily  a  conflict 
of  construction.  The  head  of  the  latter  kind  of  family  may 
convey  his  homestead.^  , 

The  word  homestead  is  frequently  emploj'^ed  in  exemption 
statutes  as  in  common  parlance,  and  more  frequently  in  its 
technical  sense  as  defined  in  the  first  section  of  this  work. 
Which  is  intended  by  the  legislator,  in  any  case,  may  readily 
be  ascertained  by  the  context ;  and  what  he  intended  the  courts 
are  bound  to  accept,  if  there  be  no  ambiguit}^. 

§  3.  Uniform  Operation. 

A  statute  must  operate  uniformly  and  equally  upon  all  who 
are  subjected  to  it,  under  the  circumstances  which  it  embraces.^ 
It  may  not  be  applicable  to  all  persons,  but  only  to  all  per- 
sons who  are  in  the  situation  or  circumstances  contemplated 
by  the  act.^ 

The  uniformity  required  is  not  dependent  upon  the  number 
of  persons  within  the  operation  of  the  statute,  when  it  is  broad 
enough  to  include  all  who  may  come  within  it.* 

Applying  the  principles  to  homestead  exemption,  it  will  be 
seen  that  while  the  privilege  is  extended  to  heads  of  families 
only,  in  most  of  the  statutes  on  the  subject,  it  is  not  objec- 
tionable on  that  account  as  a  matter  of  legislation.  The  pro- 
vision is  uniform  as  to  all  within  the  class ;  and  no  one  is 
inhibited  from  coming  within  it.  Manifestly,  the  judiciary 
cannot  defeat  by  construction  what  the  legislature  is  bound  to 

1  McLean  v.  Ellis,  79  Tex.  398.  State  v.  Burnett,  6  Heisk.  186 ;  Mc- 

2  People  V.  Cooper,  83  111.  585 ;  Peo-  Aunich  v.  Miss.  etc.  R.  Co.,  20  la. 
pie  V.  Wright,  70  111.  398 ;  State  v.  338 ;  Thomason  v,  Asliworth,  73  Cal. 
Reitz,  63  Ind.  159 ;  Hanlon  v.  Com'rs,  78. 

53  Ind.  123 ;  Clem  v.  State,  33  Ind.  4  Phillips  v.  Mo.  etc.  R.  Co.,  86  Mo. 

418.  540;    State  v.  Wilcox,   45   Mo.  458; 

» Ragio  V.  State,  86  Tenn.  272 ;  Mc-  U.  S.  Express  Co.  v.  Ellyson,  28  la. 

Kinney  v.  Hotel  Co.,  12  Heisk.  104 ;  370 ;  Bannon  v.  State,  49  Ark.  167 ; 

Taylor  v.   Chandler,   9  Heisk.   349 ;  State  v.  Spaude,  37  Minn.  323. 


28  CONSTKUCTION. 

follow  as  a  principle.  Courts  cannot  accord  homestead  rights 
to  one  man  and  deny  them  to  another,  both  being  in  like  cir- 
cumstances; both  complying  with  the  conditions. 

What  are  we  to  understand  when  it  is  said  of  courts,  rela- 
tive to  homestead  cases,  that  they  "have  endeavored,  as  best 
they  could,  to  decide  some  of  the  questions  presented,  not 
upon  general  rules  founded  upon  knoAvn  and  fixed  principles 
which  should  govern  all  cases,  but  simply  to  determine  the  par- 
ticular case  by  such  rules  of  construction  and  analogy  as  were 
considered  most  applicable"^  —  what  are  we  to  understand 
from  this?  Certainly  the  full  import  of  the  words  could  not 
have  been  meant.  The  meagerness  of  legislation  is  mentioned 
as  a  reason  for  this  course.  But  the  enlightened  tribunal 
which  made  the  deliverance  has  shown,  in  other  decisions, 
that  departure  from  the  fixed  rule  of  uniformity  is  not  coun- 
tenanced.^ 

The  rule  of  uniformity  is  so  well  established  that  the  cita- 
tion of  authorities  to  sustain  it  seems  superfluous;  but  the 
following  extract  is  so  apt  that  its  insertion  needs  no  apology. 
It  is  with  reference  to  a  homestead  law. 

"  The  statute  is  indeed  to  be  liberally  construed  to  insure 
the  beneficial  purpose  of  the  provision ;  but  the  courts  are  not 
to  constitute  themselves  the  almoners  of  such  beneficent  pur- 
pose, and  distribute  bounties  in  their  discretion,  but  rather  to 
give  such  construction  as  shall  establish  a  general  rule  ap- 
plicable to  all  cases."  ^ 

§  4r.  Liberal  Interpretation. 

When  a  word,  a  phrase,  a  sentence,  a  section  or  a  whole 
statute  does  not  express  the  intention  of  the  legislature  upon 
its  face,  free  from  ambiguity,  the  office  of  the  interpreter  is 
called  into  exercise.  Only  in  such  a  case  is  a  homestead  law 
construable.  The  question  raised  is :  What  did  the  law-giver 
mean  by  the  word  phrase,  sentence,  section  or  statute?  That 
meaning  must  be  declared  by  the  court,  whether  it  be  favor- 

1  Roco  V.  Green,  50  Tex.  489.  ingly   in   Currier  v.  Woodward,  62 

2 Pool  V.  Wedemeyer,  56  Tex.  289;  N.  H.  66,  in  which  it  was  said :  "We 

Baird  v.  Trice,  51  Tex.  559.  can  only  interpret   the   statute  ac- 

3  Judge    Redfield    in    Bugbee    v.  cording  to  its  terms." 

Bemis,  50   Vt.   219,   quoted   approv- 


LIBERAL  intp:rpkktation.  29 

able  or  unfavorable  to  the  judges'  opinion  of  what  homestead 
laws  should  be.  The  meaning  is  to  be  impartially  ascertained 
without  necessarily  resorting  to  the  rule  of  liberal  construc- 
tion. 

If  the  matter  to  be  construed  may  have  two  different  ren- 
derings, either  apparently  expressive  of  the  legislative  intent, 
it  becomes  necessary  to  elect  between  the  two.  If  the  statute 
is  remedial,  and  one  rendering  tends  to  meet  the  mischief  and 
advance  the  remedy  while  the  other  does  not,  the  former  con- 
struction must  prevail.  The  scales  being  balanced  equally  in 
other  respects,  preponderance  must  be  given  to  one  side  by 
the  touch  of  the  court.  Liberal  construction  is  the  rule.  It 
is  to  be  applied  to  homestead  laws  in  such  a  case.  They  are 
remedial.  They  seek  to  meet  the  mischief  of  unhousing  fam- 
ilies by  exempting  homes  from  forced  sales.  The  mischief  to 
be  met  is  not  poverty  in  general,  for  the  remedy  is  given  only 
to  holders  of  real  estate  who  are  heads  of  families,  by  most  of 
the  homestead  statutes;  it  is  not  debt-paying,  for  the  law 
favors  the  payment  of  debts,  and  the  exemption  provided  is 
accorded  to  solvent  as  well  as  insolvent  owners.  The  policy 
of  the  homestead  laws  is  the  conservation  of  homes  for  the 
good  of  the  state ;  the  mischief  to  be  prevented  by  those  laws 
is  the  breaking  up  of  families  and  homes  to  the  general  injury 
of  society  and  of  the  state ;  the  remedy  provided  is  the  ex- 
emption of  occupied  family  homes  from  the  hammer  of  the 
executioner.  Whether  the  exemption  be  only  for  the  period 
of  occupancy  by  the  head  of  a  family,  or  be  extended  during 
the  life  of  his  widow  and  the  minority  of  his  children,  it  is  a 
remedy  to  be  liberally  accorded  whenever  the  intent  of  the 
legislature  is  doubtful  and  the  necessity  of  favoring  or  disfa- 
voring a  remedial  provision  is  thus  thrust  upon  the  court. 

The  "mischief"  and  "remedy,"  as  above  set  forth,  have 
been  not  always  clearly  kept  in  view.  It  has  been  said  that 
the  debtor's  benefit  is  the  only  design  of  the  legislator  in  en- 
acting a  homestead  law,  and  that  there  should  be  liberal  con- 
struction to  effect  that  design  since  the  statute  is  remedial  in 
nature  and  effect.^  This  seems  to  mistake  both  the  mischief 
and  the  remedy.     Many  like  deliverances  might  be  collected, 

1  Felds  V.  Duncan,  30  111.  App.  469,  ^7^. 


30  OONSTKUOTION. 

but  courts  cannot  always  explain  their  declarations  minutely, 
and  one  must  understand  that  there  was  no  thought  of  hold- 
ing all  debtors  beneficiaries  of  the  exemption  privilege,  or  of 
denying  that  family  conservation  is  really  the  object  of  home- 
stead legislation.  Apart  from  that  object,  there  should  not 
be  liberal  construction  to  screen  a  debtor  from  paying  his  just 
debts. 

Respecting  homestead  statutes,  liberal  construction  is  the 
rule  so  far  as  concerns  exemption.  Both  the  letter  and  mean- 
ing of  those  statutes  justify  and  require  such  interpretation. 
The  protection  of  the  family  home  from  forced  sale  should  be 
accorded  by  the  courts  in  the  same  generous  spirit  which  act- 
uated the  legislator  in  ordaining  it.  Within  the  true  bounds 
of  construction,  they  are  bound  to  expound  the  law  as  written 
and  designed,  and  cause  it  to  be  enforced  so  as  to  effectuate 
the  public-spirited  motive  of  the  law-giver  when  providing  for 
the  conservation  of  homes  for  the  general  welfare  of  all  the 
people  of  the  state. 

Courts  have  very  frequently  laid  down  that  liberal  con- 
struction is  the  rule.  It  is  very  well  settled  that  it  is  the  rule 
with  respect  to  the  exemption  feature  of  homestead  statutes. 
The  decisions  do  not  always  qualify  the  application  of  it,  but 
that  is  generally  what  is  meant  when  general  terms  are  em- 
ployed. The  professional  reader  will  readily  see  that  such 
unqualified  statements  have  not  been  meant  to  go  so  far  as  to 
say  that  all  the  provisions  of  a  homestead  statute  —  such  as  re- 
straint upon  alienation,  for  instance  —  must  be  liberally  con- 
strued. 

Courts  have  not  been  lax  in  according  to  the  homestead 
beneficiary  all  his  rights  and  privileges.  The  cases  holding 
liberal  construction  are  so  numerous  that  all  cannot  be  con- 
veniently given ;  and  those  here  cited  (though  several  of  them 
are  not  discriminating)  are  presented  with  reference  to  the 
liberal  construction  of  the  exemjption  ^romsion  of  homestead 
statutes.^ 

1  Mitchelson  v.  Smith,  28  Neb,  586 ;  Sands,  32  Wis.  387 ;  Jarvis  v.  Moe,  38 

Chopin  V.  Runte,  75  Wis.  361;  Zim-  Wis.  440;  Weisbrod  v.  Daemicke,  36 

mer  v.  Pauley,  51  Wis.  282 ;  Dunn  v.  Wis.  73 ;  Swearingen  v.  Bassett,  65 

Buckley,  56  Wis.  192;  Kuntz  v.  Kin-  Tex.  273-4;  Roco  v.  Green,  50  Tex. 

ney,  33  Wis.  510;    Conuaughton  v.  489 ;  White  v.  Fulghum,  87  Tenn.  281 ; 


LIBERAL    INTERPKETATION.  31 

Doubtless  liberal  construction  is  the  rule  relative  to  exemp- 
tion, when  there  is  something  construable.  Courts  mean  that, 
though  they  do  not  always  ])articularize.  In  many  of  the 
cases  just  cited,  and  numerous  others,  it  is  broadly  stated  that 
homestead  statutes  are  to  be  liberally  construed,  but  they 
must  be  understood  that  it  is  so  only  when  there  is  something 
needing  interpretation,  and  only  for  the  purpose  of  ascertain- 
ing the  intention  of  the  legislature  that  the  mischief  may  be 
met  and  the  remedy  advanced.  What  a  court  has  said  broadly 
in  one  place  is  often  limited  and  elucidated  in  another,  so  that 
the  true  doctrine  appears.  For  instance,  it  was  said  by  a  su- 
preme court  that  the  exemption  of  a  homestead  from  levy  and 
sale  for  debt  should  be  construed  so  as  to  suppress  the  mis- 
chief and  advance  the  remedy;'  but  afterwards  said,  in  an- 
other homestead  case :  "  Where  the  terms  of  the  statute  are 
not  plain,  but  admit  of  more  than  one  construction  —  one  of 
which  leads  to  great  inconvenience  and  injustice,  and  possibly 
to  the  defeat  or  obstruction  of  the  legislative  intent  —  then 
the  court  may,  with  a  view  to  avoid  such  results,  adopt  some 
other  construction  more  in  accordance  with  the  legislative  in- 
tent."^ Here  the  true  doctrine  is  fully  vindicated.  Evidently 
the  court  had  not  meant,  in  the  first  case,  that  there  should  be 
liberal  construction,  or  any  construction  at  all,  of  a  homestead 
statute  when  its  terms  are  plain ;  nor  had  it  meant  that  such 
a  statute,  when  requiring  construction,  should  be  subjected  to 
any  other  when  it  admits  of  but  one. 

Jackson   v.    Shelton,  89    Tenn.    82 ;  v.  Adams,  28  Vt  541 ;  True  v.  Mor- 

Dickinson  v.  Mayer,  11  Heisk.  515,  rell,  28  Vt.  674;   Mills  v.  Grant,  36 

520-1 ;  Ren  v.   Driskell,  11  Lea,  649 ;  Vt.  271 ;  Tipton  v.   Martin,   71   Cal. 

Arnold  v.  Jones,  9  Lea,  548 ;  Barber  325 ;  Southwick  v.  Davis,  78  Cal.  504 ; 

V.  Rorabeck,  36  Mich.  399 ;  Bouchard  Moss  v.  Warner,  10  Cal.  296 ;  Graham 

V.  Bourassa,  57  Mich.  8 ;  Campbell  v.  v.   Stewart,  68  Cal.  374 ;    Schadt  v. 

Adair,  45  Miss.   178,  182;  Wassell  v.  Heppe,  45  Cal.  433 ;  Estate  of  Busse, 

Tunnah.  25  Ark.  103 ;  Roflf  v.  John-  35  Cal.  310 ;   Estate  of  Orr,  29  Cal. 

son,  40  Ga.  555 ;  Norton  v.  Bradham,  101 ;  Loeb  v.  McMahon,  89  111.  487 ; 

21  S.  C.  375,  381;  Robinson  v.  Wiley,  Deere  v.  Chapman,  25  111.  498. 

15  N.  Y.  494 ;  Bradshaw  v.  Hurst,  57  l  Norton  v.  Bradham,  21  S.  C.  375. 

la.  745 ;  Johnson  v.  Gaylord,  41  la.  381. 

362 ;    Bevan  v.  Hayden,  13  la.  122 ;  2  Savings  Bank  v.  Evans,  28  S.  C. 

Montague  v.  Richardson,  24  Ct.  338 ;  521,  citing  The  King  v.  Beeston,  3 

Peverly  v.  Sayles,  10  N.  H.  358 ;  Bux-  Term  R.  594-5. 
ton  V.  Dearborn,  46  N.  H.  44 ;  Howe 


32  00N8TKUCTI0N. 

Where  choice  must  be  made  between  two  renderings  of 
equal  plausibility,  resort  may  be  had  to  the  general  tenor  of 
the  statute.  The  established  rule  is  applicable :  "The  spirit 
of  a  law  may  be  referred  to  in  order  to  interpret  words  ad- 
mitting of  two  meanings ;  but  not  to  extend  a  law  to  a  case 
not  within  its  fair  meaning."  ^  And  the  rule,  may  be  fairly 
applied  when  phrases,  sentences  or  paragraphs  are  susceptible 
of  two  meanings.  The  cardinal  purpose  of  the  whole  act  has 
then  a  controlling  influence,  and  all  the  parts  must  h6  made 
to  harmonize  if  possible.^ 

"  It  is  a  fundamental  rule  of  statutory  construction  that,  if 
possible,  effect  shall  be  given  to  all  the  language  of  an  act 
rather  than  that  any  part  should  perish  by  ascribing  a  greater 
and  conflicting  force  to  another  part.  The  homestead  law 
should  be  liberally  construed  to  effect  the  objects  in  view  in 
its  adoption ;  but  it  cannot  properly  be  enlarged  by  construc- 
tion to  create  greater  exempt  estates  than  the  legislature  de- 
scribed in  the  language  used." ' 

Courts  cannot  supply  what  is  wanting  in  a  plain  law.  It 
has  been  aptly  said :  "  The  right  to  a  homestead  exemption 
is  purely  statutory,  and  if  not  found  in  the  letter  and  spirit 
of  the  law,  it  cannot  be  raised  by  implication,  through  the 
rule  of  liberal  construction,  which  is  applied  to  facilitate  the 
object  of  the  statute  where  the  subjects  of  its  bounty  are 
made  manifest."  *  And  it  may  be  added  that  the  rule  is  ap- 
plied to  facilitate  that  object  only  when  there  is  occasion  to 
resort  to  it  in  the  interpretation  of  something  needing  to  be 
interpreted. 

"We  are  not  at  liberty  to  disregard  the  statute;  its  pro- 
visions are  binding  upon  us ;  and,  in  the  absence  of  a  compli- 

1  Beebe  v.  Griffing,  14  N.  Y.  344.  School  Com'rs,  31  Ala.  237 ;  Dunlap, 

2  Commonwealth  v.  Liquors,  108  Ex  parte,  71  Ala.  73 ;  Clearfoss  v. 
Mass.  19 ;  Gates  v.  Salmon,  35  Cal.  State,  43  Md.  406 ;  Green  v.  Cheek,  5 
576 ;  Potter  v.  Saflford,  50  Mich.  46 ;  Ind.  105 ;  Aldridge  v.  Mardofif,  33 
ReithmiUer  v.  People,  44  Mich.  280 ;  Tex.  204 ;  Brooks  v.  Hicks,  20  Tex. 
Whipple  V.  Judge,  26  Mich.  343 ;  666 ;  State  v.  Commissioners,  34  Wis. 
Kelly  V.  McGuire,  15  Ark.  555;  Wil-  162;  Howard  v.  Mansfield,  30  Wis.  75. 
son  V.  Biscoe,  11  Ark.  44 ;  Martin  v.  3  Quinn  v.  Kinyon,  100  Mo.  551, 
O'Brien,  34  Miss.  21 ;  State  v.  Turn-  554. 

pike  Co.,  16  Ohio  St.  308 :  City  Bank        *  Little's  Guardian  v.  Woodward, 
V.  Huie,  1  Rob.  (La.)  236 ;  Brooks  v.     14  Bush,  587. 


J 


POLICY HOW    FAR   TO    BE    CONSIDERED.  38 

ance  with  them,  we  can  only  declare  the  result  flowing  there- 
from." ' 

Homestead  is  a  strictly  legal  and  statutory  right,  and  equi- 
table principles  not  recognized  by  the  statute  cannot  be  in- 
voked to  extend  it,  by  a  claimant  of  the  right.'^  The  legis- 
lative intent  is  all  that  the  courts  have  to  ascertain,  and  they 
must  find  it  in  the  statute  itself.  They  are  not  at  liberty  to 
limit  or  modify  it  by  inferences  from  statutes  on  other  sub- 
jects, when  the  intent  is  not  clearly  declared.^ 

§  5.  Policy  —  How  Far  to  be  Considered. 

The  policy  of  the  state  is  so  frequently  adverted  to  in  the 
construction  of  homestead  statutes  that  it  may  be  necessary 
to  notice  it  briefly.  The  Supreme  Court  of  the  United  States 
has  said  that  the  policy  of  the  government  with  reference  to  any 
particular  legislation  is  generally  very  uncertain ;  that  '*  it  is 
a  ground  much  too  unstable  upon  which  to  rest  the  judgment 
of  the  court  in  the  interpretation  of  statutes."  *  Courts  have 
little  to  do  with  the  policy  of  the  law  when  construing  an  act. 
Having  ascertained  the  intention  of  the  enactors  according  to 
the  established  rules  of  interpretation,  they  must  give  it  effect 
whether  the  policy  of  the  law  be  good  or  bad,^ 

If  arguments,  drawn  from  the  policy  of  the  law,  or  of  the 
state,  or  of  the  legislature  (all  meaning  practically  the  same 
thing),  are  to  influence  construction  when  the  meaning  of  a 
provision  cannot  be  ascertained  from  the  provision  itself,  or 
from  the  context,  or  from  the  debates,  or  from  any  of  the 
sources  which  must  first  be  resorted  to,  they  should  be  re- 
ceived with  great  caution,  and  with  care  on  the  part  of  the 
expounder  lest  unwittingly  his  own  predisposition  influence 
his  conclusion. 

The  policy  of  the  law  is  often  given  as  a  reason  for  con- 
struction in  decisions  upon  homestead  statutes.     It  is  a  very 

J  Schuyler  v.  Broughton,   76    Cal.        spool  v.  Wedemeyer,  56  Tex.  287 ; 

524  Bosloy  v.  Mattingly,  14  B.  Mon.   73; 

sCaseboltv.  Donaldson,  67  Mo.  308.  Coffin  v.  Rich,  4o  Me.  507;  Linden- 

3  Barber  v.  Rorabeck,  36  Mich.  399 ;  muller  v.  People,  21  How.  (N.  Y.)  156 ; 
Bouchard  v.  Bourassa,  57  Mich.  8.  People  v.  Hoym,  20  How.  (N.  Y.)  76; 

4  Hadden  v.  The  Collector,  5  Wall.  Baxter  v.  Tripp,  12  R.  L  310 ;  Roberts 
111.     To  the  same  effect:  Municipal  v.  Cannon,  4  Dev.  &  Bat»  L.  267. 
Society  v.  Kent,  4  L.  R  9  App.  Cas.  373. 

3 


34  CONSTRUCTION. 

vague  and  uncertain  reason  for  judgment.  There  is  danger 
that  the  judge  unconsciously  will  substitute  his  own  opinion 
of  the  policy  for  that  of  the  legislator ;  so  it  has  been  held 
that  courts,  when  interpreting  a  statute,  have  no  right  to 
judge  of  its  policy.^  Certainly  they  are  not  at  liberty  to  pass 
upon  its  merits,  its  expediency  or  its  utility.^  They  have  the 
right,  coupled  often  with  the  duty,  of  determining  the  char- 
acter of  the  law  as  to  its  tendency  to  promote  virtue,  liberty 
and  humanity,  since,  in  its  construction,  they  are  required  to 
be  liberal  for  the  promotion  of  such  ends.  But  they  must  as- 
certain the  character  from  the  act  itself  as  therein  expressed 
or  clearl}'- implied — not  from  their  own  preconceived  opin- 
ion of  the  policy  of  the  act.  "  All  sorts  of  opinions,  each  va- 
riant from  the  other,  may  be  formed  by  different  persons,"  on 
the  policy  of  the  government,  as  was  said  in  the  federal  case 
abov'^e  cited. 

Policy,  as  consistent  or  harmonious  with  the  intention  of 
the  law-giver,  declared  by  him  or  inferred  from  the  law  under 
consideration,  or  from  that  and  acts  in  pari  materia  dXiogoShox 
establishing  a  continuous  purpose,  must  be  recognized  by 
courts ;  and  they  should  not  readily  deem  it  abandoned  by  the 
legislator,  in  any  particular  case,  because  the  language  of  the 
statute  is  ambiguous,  or  too  general  to  express  the  policy  in 
a  particular  instance.  If  the  sense  is  consistent  with  settled 
policy,  general  expressions  are  not  to  be  taken  as  authorizing 
a  departure  from  that  policy.* 

If  the  policy  of  the  law  is  not  to  be  relied  upon,  as  the 
highest  court  has  said,  what  shall  we  say  of  the  policy  of  the 
court  f  What  of  the  enlargement  of  state  policy  avowedly  in 
conformity  to  the  latter?     Take  the  following  excerpt: 

"  It  has  come  to  be  the  settled  policy  of  judicial  rulings  in 
this  state,  to  construe  our  humane  system  of  exemption  laws 
with  an  enlarged  liberality,  that  the  remed}'^  and  benefaction 

»  Roberts  v.  Cannon,  4  Dev.  &  Bat.        3  Minet  v.   Lenian,  20  Beav.   269 ; 

L.  267.  Greenhow  v.  James,  80  Va.  636 ;  Gre- 

2Sheley  v.  Detroit,  45  Mich.  431;  nada  Co.  v.  Brogden,  112  U.  S.  261; 

Reithniiller  v.  People,  44  Mich.  280 ;  Fort  v.  Burch,  6  Barb.  60 ;  Baxter  v. 

People  V.  Lawrence,   36  Barb.   177 ;  Tripp,  12  R,  I.  310 ;  Rowley  v.  Stray, 

LindenmuUer    v.   People,    21    How.  32  Mich.   70;     Attorney -General    v. 

(N.  Y.)  156 ;  People  v.  Hoym,  20  How.  Smith,  31  Mich.  359 ;  Blackwood  v. 

(N.  Y.)  76.  Van  Vliet.  30  Mich.  118. 


POLICY  —  HOW    FAR    TO    BE    CONSIDERED.  60 

intended  for  the  protection  of  the  poor  may  be  advanced 
rather  than  embarrassed  by  construction.  And  the  spirit 
rather  than  the  letter  of  these  beneficent  laws  is  to  be  looked 
to  as  the  just  criterion  of  interpretation."  ^ 

May  we  look  beyond  the  letter  for  the  meaning  when  there 
is  no  obscurity  or  ambiguity  and  therefore  "  no  room  for  con- 
struction," on  the  plea  that  it  is  the  policy  of  the  courts  to  do 
so?  The  sense  before  grammatical  nonsense — always;  but 
no  seeking  of  intent  when  the  intent  is  not  hidden.  'No  judi- 
cial policy  of  "  enlarged  liberality  "  is  known  in  the  established 
rules  of  statutory  construction. 

In  the  case  last  cited,  such  liberality  resulted  in  according 
to  a  claimant  a  homestead  which  neither  he  nor  his  family 
had  ever  occupied  as  a  home;  and  it  also  resulted  in  the  pro- 
mulgation of  this  extra-statutory  rule :  that  if  a  man  "  is  com- 
pelled by  his  poverty  to  occupy  rented  premises,  the  usufruct 
of  the  soil  by  which  his  family  is  maintained  must  be  held  to 
fix  the  homestead  intended  to  be  protected." 

This  construction  of  the  law,  on  ostensibly  humanitarian 
grounds,  is  unwarrantable  from  the  spirit  of  the  homestead 
legislation,  which  is  not  for  the  poor  alone  but  protects  the 
mansion  of  the  millionaire  where  there  is  no  monetary  limit, 
and  cannot  protect  the  abject  poor  who  own  no  home.  The 
man  who  owns  soil  from  which  he  receives  usufruct  entitling 
him  to  homestead  exemption  (according  to  this  deliverance) 
is  likely  to  be  less  an  object  of  charity  than  those  around  him 
w^ho  own  no  soil,  and  w^ho  may  chance  to  be  his  creditors. 

If  the  rule  announced  is  to  prevail  in  any  case,  it  ought  to 
be  of  universal  application ;  yet  it  did  not  control  a  case,  on 
similar  facts,  which  soon  followed  it;  usufruct  did  not  fix 
homestead  in  the  latter.^  But  in  a  later  case,  the  decision  de- 
claring this  rule  was  cited  w^ithout  qualification.^  The  doc- 
trine, however,  does  not  seem  to  have  any  root  in  the  govern- 
ing statute.* 

1  Dickinson  v.  Mayer,  11  Heisk  515,  s  White  v.  Fulghum,  87  Tenn.  281. 
520,  Sneed,  J.     Approved,  White  v.  See  Arnold  v.  Jones,  9  Lea,  548. 
Fulghum,  87  Tenn.  281.  4  Acts  of  Tenn.  (1870-1),  p.  98 ;  Code 

2  Wade  V.  Wade,  9  Bax.  612,  ap-  Tenn.,  §  2114a. 
proved  in  Collins  v.  Bozett,  87  Tennu 

334 


36  CONSTRUCTIOK. 

In  the  case  last  cited,  it  was  said :  "  The  homestead  exemp- 
tion is  a  favorite  in  this  country,  and  all  laws  concerning  it 
are  by  the  courts  to  bo  liberally  construed  in  favor  of  the 
claimant."  But  it  is  not  true  that  favoritism  among  statutes 
should  influence  their  construction,  however  liberally  any  re- 
medial one  may  be  entitled  to  be  construed  when  construable. 
The  policy  of  courts,  to  make  any  remedy  a  favorite,  seems 
unwarrantable. 

With  respect  to  homestead  policy  and  interpretation,  in  a 
comparatively  recent  decision,  it  was  said :  "  Eight  or  wrong, 
wise  or  unwise,  from  the  beginning,  neither  the  people  in  con- 
vention, nor  the  legislature,  nor  the  courts  have  taken  any 
backward  step.  Every  change  has  extended  the  protection, 
and  these  have  been  sufficiently  frequent  to  make  the  progress 
of  expansion  a  steady  march.  When  the  courts  have  hesitated 
or  halted,  they  have  been  brought  forward  into  line  by  the 
law-making  power. 

"In  the  absence  of  definitive  legislation  to  guide  us,  and 
in  obedience  to  the  2>'i"og7'essive  tendency  adverted  to,  we  hold 
against  the  preponderance  of  authority,  but  with  the  prepon- 
derance of  reason,  that  a  partner  in  a  solvent  firm  may  desti- 
nate  his  interest  in  partnership  realty  as  a  part  of  his  home- 
stead, and  thus  secure  it  from  forced  sale."  ^ 

The  probability  that  legislation  would  advance  so  as  to  cover 
the  question  decided  was  no  reason  for  its  anticipation  by  the 
court. 

§  6.  Charitable  Grounds. 

Doubtless  charity,  liberty,  justice  and  morality  demand  lib- 
eral construction  in  their  favor  when  the  statute  is  dubious 
and  therefore  construable;  but  to  hold  homestead  laws  to 
have  been  made  for  the  impecunious  debtor  only,  and  to  make 
invidious  distinctions  between  different  classes  of  real  estate 
owners  (all  must  be  such  owners  w^ho  claim  homestead),  is  to 
go  beyond  the  statutes  of  most  of  the  states. 

The  legislative  policy  of  conserving  homes,  though  embrac- 
ing the  dwellings  of  wealthy  householders  as  well  as  those  of 
the  poor,  is  incidentally  humane  and  charitable.  But,  even  if 
the  prime  design  of  the  legislator  were  charity  to  the  impe- 

1  Swearingen  v.  Bassett,  65  Tex.  273-4 


CHARITABLE    GROUNDS.  37 

cunioiis,  his  enactments  must  be  just  as  well  as  charitable.  It 
goes  without  the  saying  that  all  laws  must  be  just  to  com- 
mend themselves  to  a  court  of  justice. 

A  homestead  law,  providing  that  the  right  of  creditors  to 
make  their  money  out  of  property  upon  which  they  have 
given  credit  to  the  owner,  without  notice  to  them  prior  to  the 
giving  of  the  credit,  would  be  unjust,  however  charitable  to 
the  debtor  and  his  family.  In  the  language  of  Lord  Holt: 
"  Let  a  statute  be  ever  so  charitable,  if  it  gives  away  the  prop- 
erty of  the  subject  it  ought  not  to  be  countenanced."  '  This 
principle  has  been  pointedly  applied  to  exemptions  from  forced 
sale  under  execution.'^ 

It  has  been  said :  "  The  purpose  and  policy  of  the  law  is  to 
provide  a  home  and  shelter  for  the  surviving  husband  or  wife 
and  for  the  minor  children."  *  But  the  state  confers  no  home. 
Instead  of  "  provide,"  it  would  be  better  to  insert  "  protect," 
The  policy  is  to  conserve  the  home  already  owned  and  pos- 
sessed: not  to  bestow  one  upon  the  houseless.  This  was  evi- 
dently the  meaning  of  the  court  which  had  previously  said : 
"  The  estate  of  homestead  is  given  to  every  householder  hav- 
ing a  family,  in  the  farm  or  lot  of  land,  and  buildings  thereon, 
owned  or  rightly  possessed,  by  lease  or  otherwise,  and  occupied 
by  him  or  her  as  a  residence."  * 

If  the  object  of  homestead  laws  is  the  protection  of  fam- 
ilies from  want  and  dependence,  as  has  been  said,'^  the  legis- 
lator ought  to  have  compassion  on  the  abject  poor  families 
of  his  state,  instead  of  confining  his  charity  to  those  who  own 
houses.  To  favor  the  freeholder,  and  withhold  from  the  land- 
less, the  homeless  and  the  penniless,  is  queer  charity. 

No  doubt  homestead  statutes  are  remedial,  and  therefore 
the  intention  of  the  legislature,  evidenced  by  them,  is  to  be 
liberalh''  construed  when  construction  becomes  necessary ;  and 
the  statutes  are  to  be  fuUv  enforced  —  no  vested  rights  beine- 
molested.     But  the  idea  of  their  being  thus  construed  as  laws 

1  Calladay  v.  Pilkington,  12  Mod,        *  lb.,  p.  518. 

513.  s  Tumlinson   v.   Swinney,  22   Ark. 

2  Danforth  v.  Woodward,  10  Pick,  400 :  McKenzie  v.  Murphy,  24  Ark. 
423;  Buckingham  v.  Billings.  13  157;  Greenwood  v.  Maddox,  27  Aik. 
Mass.  82.  G55. 

3  Capek  V.  Kropik,  129  111.  509,  519. 


38  coNSTEucrioM. 

whose  principal  aim  is  charity  has  been  too  prevalent  in  de- 
cisions. 

What  rig'ht  has  any  court  to  assume,  in  the  absence  of  evi- 
dence on  the  subject  in  the  case  at  bar,  that  the  creditor  is 
rich  and  the  debtor  poor?  Especially,  in  a  homestead  case, 
when  there  is  this  known  of  the  debtor:  tJhat  he  is  a  freeholder 
or  leaseholder  —  has  a  home  —  while  the  creditor  may  be 
homeless.  If  the  homestead  holder  "  is  in  debt  it  is  because 
some  one  has  trusted  him,  and  he  has  received  an  equal  value 
in  money  or  other  property  to  that  which  can  be  taken.  The 
creditor  is  not  to  be  treated  as  an  enemy  who  is  robbing  him. 
He  too  may  want  a  home,  and  often  would  have  had  one 
could  he  have  received  his  due.  He  may  have  a  wife  and 
children  likewise  in  need.  He  but  demands  a  fair  show  before 
the  law  to  collect  his  debt  and  enable  himself  to  acquire  home 
comforts,  but  no  sentiment  is  wasted  on  him,  .  .  .  But 
they  are  nevertheless  as  dear  to  him,  and  should  be  as  sacred 
to  the  courts."  ' 

The  prevalent  system  does  not  regard  homestead  as  charity. 
But  there  are  exceptional  ones  which  do.  The  charity  idea  pre- 
vails where  the  homestead  right  is  accorded  only  in  case  there 
are  minors  in  the  family  who  have  no  property  in  their  own 
right  sufficient  for  their  support,'-'  and  wherever  it  is  accorded 
only  in  case  of  poverty. 

§  7.  Common  Right. 

A  statute  derogatory  to  common  right  is  subjected  to  strict 
construction.  This  rule  is  as  well  supported  by  decisions  rel- 
ative to  different  classes  of  cases  as  any  other,  though  but  a 
few  need  be  cited.^ 

Homestead  exemption  is  not  in  derogation  of  the  rights 
of  creditors,  in  the  common-law  states;  but  in  the  one  state 

1  Judge  Snodgrass,  for  the  court,  Pinkham  v,  Dorothy,  55  Me.  135 
the  J.  I.  Case  Company  v.  Joyce,  89  Mitchell  v.  Eockland,  45  Me.  496 
Tenn.  837,  347.  Sprague    v.    Birdsall,    3    Cow.    4l9 

2  Woods  V.  Perkins  (La.).  9  So.  48.       Webb  v.  Baird,  6   Ind.  13 ;  Rothger- 
» Marsh  v.  Nelson,   101  Pa.  St.  51;     ber  v.  Dupuy.  64  111.  452;  Walker  v. 

Mayor  v.  Hartridge,  8  Ga.  23 ;  Flint.  Chicago,  56  111.  277 ;  Sutherland  on 

etc.  Steamboat  Co.  v.  Foster,  5  Ga.  Statutory  Construction,  §  366,  citing 

194 ;  Monson  v.  Chester,  22  Pick.  385 ;  above  cases. 
Danvers   v.    Boston,    10    Pick     513; 


COMMON    RIGHT.  39 

governed  by  the  civil  law,  it  is  so  held,  and  the  rule  of  strict 
construction  is  applied.  The  debtor's  property  is  the  common 
pledge  to  all  creditors ;  it  is  that  to  which  credit  is  given, 
though  no  conventional  lien  be  created ;  and  hence  any  stat- 
utory inhibition  of  its  forced  sale  to  make  the  debtor  pay  his 
debts  is  deemed  inimical  to  the  creditor's  right  and  interest, 
and  therefore  to  be  strictly  construed.  For  this  reason,  and 
under  the  operation  of  this  rule,  homestead  laws  are,  in  that 
state,  strictly  construed  as  being  in  derogation  of  common 
rights,  and  beneficiaries  are  required  to  bring  themselves  within 
both  their  spirit  and  letter.^ 

It  would  be  derogatory  to  common  right,  if  the  creditor 
should  be  cut  off  from  making  his  money  out  of  the  debtor's 
property  to  which  he  had  looked  for  security  when  giving 
credit.  In  other  words,  if  the  world  were  not  notified  that  the 
homestead  is  exempt,  any  creditor  might  look  to  it  for  his  se- 
curity. But  the  world  is  notified  by  the  statute,  by  the  re- 
cording when  required,  by  occupancy,  or  in  some  way,  in 
every  state  (not  excepting  the  one  just  singled  out  as  holding 
the  strict  construction  theory),  that  creditors  need  not  look 
to  the  homestead  for  pay.  After  such  notice,  there  is  noth- 
ing derogatory  to  common  right  in  the  law's  withholding  the 
exempt  property  from  the  creditor. 

While  the  common-law  states  generally  hold  that  the  ex- 
emption of  homesteads  is  not  derogatory  to  the  common  right, 
yet  there  are  decisions  in  those  states  which  treat  it  as  thwart- 
ing a  means  long  accorded  to  creditors  in  this  country,  as  well 
as  in  others,  and  therefore  not  to  be  extended  by  construction. 
"Without  denying  the  doctrine  of  liberal  interpretation  for  the 
purpose  of  conserving  family  homes,  they  keep  in  view  the 
other  side  of  the  question  when  the  privileges  of  debtors  and 
the  rights  of  creditors  come  in  conflict.  The  following  ex- 
cerpts may  present  this  view : 

"  It  is  quite  true  that  the  homestead  act  is  to  have  a  liberal 

1  Kinder  v.  Lyons,  38  La.  Ann.  713 ;  34  La.  Ann.  1013 ;  Poole  v.  Cook,  34 

Galligar  \.  Payne,  34  La.  Ann.  10o7;  La.  Ann.   331;  Gilmer  v.  O'Neal,  33 

Bossier  v.  Sheriff,  37  La.  Ann.  263 ;  La.  Ann.  979 ;  Thomas  v.  Guilbeau,  35 

Tilton  V.  Vignes,  33  La.   Ann.  240 ;  La.  Ann.  927 ;  Bridewell  v.  Halliday, 

Coyle  V.  Succession  of  Creevy,  34  La.  37  La.  Ann.  410 ;  State  v.  The  Judges, 

Ann.   539 ;    Succession    of    Furniss,  etc.,  37  La.  Ann.  109. 


40  OONSTEUCTION. 

construction  to  eiTectuatc  its  purpose  to  provide  homes  for 
the  families  of  debtors ;  but,  at  the  same  time,  it  is  to  be  remem- 
bered that  it  is  in  derogation  of  tlie  general  policy  of  the  law 
which  subjects  the  property  of  debtors  to  the  just  claims  of 
their  creditors;  and  it  is  to  have  operation  and  effect  so  far, 
and  so  far  only,  as  the  legislature  has  determined."  ^ 

''  While  we  are  disposed  to  ujihold  a  very  liberal  construc- 
tion of  the  homestead  exemption,  which,  with  proper  limit- 
ations, we  think  is  consistent  with  the  wisest  public  policy, 
yet  we  cannot  assent  to  such  a  construction  as  would  infringe 
upon  the  just  rights  of  others,  which  also  demand  protection 
from  the  courts  of  the  country.  "  The  sound  principle  of 
morality  and  equity,  that  we  should  be  just  before  we  are  gen- 
erous, should  apply  to  the  departments  of  government  which 
represent  the  sovereignty  of  the  people,  as  well  as  to  the  in- 
dividual members  who  compose  this  sovereignty."  ^ 

It  is  said  that  the  exemption  of  a  homestead  from  levy  and 
sale  for  debt  should  be  construed  so  as  to  "  suppress  the  mis- 
chief and  advance  the  remedy : "  it  is  not  in  derogation  of  the 
common  law.^ 

The  fact  that  real  estate  was  not  liable  to  execution,  for  the 
ordinary  debts  of  its  owners,  at  common  law,  has  notliing  to 
do  with  the  question  whether  the  creditor  now  has  a  right  to 
look  to  such  property  for  his  money.  That  right  is  universally 
recognized,  and  therefore  notice  to  liim  is  necessary  if  the  leg- 
islator would  take  the  right  away  either  wholly  or  in  part. 
Hence  the  constitutional  necessity  of  limiting  the  operation 
of  exemption  to  debts  subsequent  to  the  passage  of  a  law  ex- 
empting homesteads  from  execution  for  debt. 

Some  states  fix  a  future  day  after  which  exemption  shall  be 
operative;  others  provide  that  debts,  contracted  after  the 
adoption  of  the  constitution  or  statute  authorizing  the  home- 
stead, shall  not  be  enforceable  by  its  execution,  with  certain 
exceptions.  There  is  nothing  novel;  for  all  statutes  are  to  be 
construed  to  operate  prospectively,  unless  a  retrospective  effect 
be  clearly  intended.'' 

The  quabfication  is  inapplicable  to  homestead  statutes,  so 

1  Lamb  v.  Mason,  50  Vt.  250.  381,     Contra:  Garaty  v.  Du  Bose,  5 

2  Baird  v.  Trice,  51  Tex.  559.  S.  C.  500, 

8Norton  V.  Bradbam,  21  S.  C.  375,         <  Harvey  v.   Tyler,    2    Wall.   347; 


COMMON    EIGHT. 


41 


far  as  the  accrued  rights  of  creditors  are  concerned.  It  may 
be  said  without  any  reference  to  retrospective  intent  on  the 
part  of  the  legislator,  that  any  law  which  exempts  property 
from  forced  sale  for  debt  must  be  prospective.^ 

Though  it  is  now  well  settled  that  the  exemption  granted 
in  homestead  statutes  cannot  apply  to  debt  antecedent  to  their 
passage,  and  that  such  application  would  so  seriously  affect  the 
creditor's  remedy  as  to  impair  his  contract  and  therefore  be 
violative  of  the  federal  constitution,-  yet  there  have  been  nu- 
merous decisions  holding  or  favoring  such  retroaction.* 

"  Statutes,  by  the  authority  of  which  a  citizen  may  be  de- 
prived of  his  estate,  must  have  the  strictest  construction ;  and 
the  power  conferred  must  be  executed  precisely  as  it  is  given, 
and  any  departure  from  it  will  vitiate  the  proceedings ;  and 
this  is  so  whether  it  be  in  the  exercise  of  a  public  or  private 
authority,  whether  it  be  ministerial  or  judicial."  ^ 


Palmer  v.  Conly,  4  Denio,  374 ;  Jack- 
son V.  Van  Zandt,  13  Johns.  176 ; 
Hackley  v.  Spiague,  10  Wend.  116; 
People  V.  Supervisors,  10  Wend.  365 ; 
Snyder  v.  Snyder,  3  Barb.  621 ; 
Blanchard  v.  Sprague,  3  Sum.  535; 
Wheedon  v.  Gorhara,  38  Ct.  412 ;  Per- 
rin  V.  Sargeant,  33  Vt.  84 ;  Simonds 
V.  Estate  of  Powers.  28  Vt.  554 ;  Sea- 
mans  V.  Carter,  15  Wis.  548 ;  Paddon 
V.  Bartlett,  3  Adolph.  &  E.  884 ;  Hitch- 
cock V.  Way,  6  Adolph.  &  E.  943 ; 
College  V.  Harrison,  9  B.  &  C.  524; 
Chambhss  v.  Jordan,  50  Ga.  81 ;  Lar- 
ence  v.  Evans,  50  Ga.  216 ;  Smith  v. 
Whittle,  50  Ga.  626. 

1  Ely  V.  Eastwood,  26  111.  107 ;  Smith 
V.  Marc,  26  111.  150 ;  Dopp  v.  Albee, 
17  Wis.  590;  Estate  of  Phelan,  16 
Wis.  76;  Succession  of  Taylor,  10 
La.  Ann.  509 ;  Milne  v.  Schmidt,  12 
La.  Ann.  553 ;  Succession  of  Foulkes, 
12  La.  Ann.  537 ;  Roupe  v.  Carradine, 
20  La.  Ann.  244 ;  Shelor  v.  Mason,  2 
S.  C.  233;  McKeithan  v.  Terry,  64 
N.  C.  25;  The  Homestead  Cases,  22 
Gratt.  266;  Tillotson  v.  Millard,  7 
Minn.  513. 


2  Louisiana  v.  New  Orleans,  102 
U.  S.  203;  Edwards  v.  Kearsey,  96 
U.  S.  595 ;  Gunn  v.  Barry,  15  Wall. 
610 ;  Von  Hoffman  v.  Quincy,  4  Wall. 
552. 

3  Morse  v.  Goold,  11  N.  Y.  281; 
Cook  v.  McChristian,  4  Cal.  23 ;  Cusic 
V.  Douglas,  3  Kas,  123 ;  Root  v.  Mc- 
Grew,  3  Kas.  215 ;  Sneider  v.  Heidel- 
berger,  45  Ala.  126 ;  Gunn  v.  Barry, 
44  Ga.  353 ;  Pulliam  v.  Sewell,  40  Ga. 
73;  Chambliss  v.  Phelps,  39  Ga.  386; 
Hardeman  v.  Downer,  39  Ga.  425; 
Re  Kennedy,  2  S.  C.  216;  Hill  v. 
Kessler,  63  N.  C.  437;  Grimes  v. 
Bryne,  2  Minn.  89 :  Rockwell  v.  Hub- 
bell,  2  Doug.  (Mich.)  198 ;  Stevenson 
V.Osborne,  41  Miss.  119;  Baylor  v. 
Bank,  38  Tex.  448  ;  Bigelow  v.  Pritch- 
ard,  21  Pick.  174;  Hill  v.  Hill.  42  Pa. 
St.  198 :  Baldy's  Appeal,  40  Pa.  St 
328 ;  Neff's  Appeal,  21  Pa.  St.  243. 

•»  Sharp  V.  Spier,  4  Hill,  76 ;  Sher- 
wood V.  Reade,  7  Hill,  431 ;  Striker 
V.  Kelly,  2  Denio,  323;  Power  v. 
Tuttle,  3  N.  Y.  396 ;  Downing  v.  Ruger, 
21  Wend.  178. 


42  '  CONSTRUCTION. 

§  8.  Hilling  to  Prevent  Fraud. 

Courts  cannot  be  too  careful  to  construe  the  homestead 
statutes  so  as  to  discountenance  fraud.  The  statutes  them- 
selves may  almost  be  said  to  open  the  door  to  fraud,  in  some 
respects.  Certainly  a  great  deal  of  moral  fraud  finds  its  way 
into  transactions  which  the  statutes  allow.  Creditors  not 
being  concerned  in  transactions  in  which  exempt  property 
changes  hands  are  not  defrauded  by  them  in  a  legal  and 
technical  sense.  Courts,  however,  should  always  disfavor  mor- 
ally fraudulent  transactions,  though  they  can  give  creditors 
no  relief  where  the  statute  gives  no  power  to  do  so.  It  was 
well  said:  "We  believe  that  the  provisions  of  the  homestead 
laws  sliould  be  carried  out  in  the  liberal  and  beneficent  spirit 
in  which  they  were  enacted,  but  care  should  be  taken  at  the 
same  time  to  prevent  them  from  becoming  the  instruments  of 
fraud." ' 

The  rule  that  statutes  against  fraud  should  be  liberally  in- 
terpreted is  a  very  ancient  one,  and  is  universally  honored. 
Under  liberal  interpretation,  it  was  long  ago  held  that  cases 
of  fraud  may  be  within  the  spirit  of  the  statute  when  not 
within  the  letter;  that  "all  such  statutes  are  in  the  advance- 
ment of  justice,  and  beneficial  to  the  public  weal,  and  there- 
fore shall  be  extended  by  equity."  ^ 

But,  as  Mr.  Bigelow  remarks,  such  extension  by  the  courts 
is  "  so  unusual  and  dangerous  a  proceeding  as  not  to  be  ap- 
plied to  new  cases  without  the  strongest  reason."  ^  The  liberal 
construction  of  doubtful  provisions  written  in  the  statute, 
however,  is  not  a  proceeding  either  dangerous  or  unusual, 
when  made  in  the  interest  of  justice  and  against  its  opposite. 

And  statutes  not  expressly  aimed  against  fraud  are  to  be 
liberally  construed  to  save  them  from  giving  countenance  to 
it,  when  ambiguous  expressions  are  liable  to  be  understood 
either  as  favoring  or  as  disfavoring  injustice.  The  scales  hang- 
ing equally  so  far  as  linguistic  adjustment  is  possible,  courts 
are  to  make  the  right  outweigh  the  wrong  when  bound  to  de- 
cide one  way  or  the  other.  It  is  presumed  that  the  legislator 
meant  to  be  just.     There  is  never  presumption  that  he  meant 

1  Drucker  v.  Rosenstein,  19  Fla,  ^  Wimbish  v.  Tailbois,  Plowd.  38, 
191, 199.  5d. 

3  2  Big.  on  Fraud,  p.  60. 


KESTKAINT    UPON    ALIENATION.  43 

to  be  unjust :  so,  before  courts  can  hold  that,  they  must  find 
unmistakable  warrant  in  the  statute. 

Homestead  laws  form  no  exception  to  this  rule.  That  they 
should  be  construed  so  as  to  carry  out  the  intention  of  the 
law-giver  is  true:  so  of  all  statutes.  That  they,  specially, 
should  be  so  construed  because  of  their  beneficence,  does  not 
render  them  exceptional  to  the  rule  against  fraud.  Who  would 
say,  that  because  statutes  favoring  liberty  against  slavery, 
morality  against  vice,  religion  against  sin,  and  the  like,  are  to  be 
interj)reted  liberally  to  effect  their  intent,  therefore  fraud  may 
be  protected  under  the  cover  of  their  wings?  How  paradox- 
ical to  say  that  a  law  to  promote  justice  may  have  one  of  its 
provisions  of  ambiguous  import  explained  so  as  to  defeat  the 
object  of  the  law ! 

§  9.  Bestraint  Upon  Alienation. 

The  general  rule  is  that  any  owner  may  sell.  A  law  forbid- 
ding the  sale  of  property,  real  or  personal,  w^ould  be  against 
commerce  and  against  right.  The  restraint  put  upon  the  free 
alienation  of  homesteads  is,  however,  with  the  assent  of  the 
property  owner.  When  he  complies  with  the  conditions  and 
claims  exemption,  he  has  assented  to  the  curtailment  of  his 
freedom  to  vend  at  pleasure,  and  has  agreed  to  comply  with 
the  law.  The  proffer  on  the  part  of  the  state,  and  the  accept- 
ance on  the  part  of  the  property-holder,  do  not  constitute  a 
contract.  The  state  is  free  to  alter  the  law  at  pleasure,  and 
the  property-holder  may  abandon  exemption  at  will,  if  he  in- 
jure no  one  by  doing  so.  There  is  no  contract,  yet  there  are 
mutual  obligations.  And  so  long  as  the  householder  claims 
the  exemption  privilege  accorded  him  by  a  statute  which  in- 
hibits his  sole  alienation  of  the  thing  exempted,  he  is  in  the 
position  of  one  assenting  to  the  restraint. 

The  general  rule,  w^ithout  special  reference  to  homestead 
statutes,  is  that  laws  in  restraint  of  the  alienation  of  property 
must  be  strictly  construed.^  And,  with  special  reference  to 
those  statutes,  the  liberal  construction  generally  accorded  them 
is  held  to  be  so  tempered  that  constitutional  and  statutory  re- 
strictions upon  alienation  should  be  construed  no  more  liber- 

1  Richardson  v.  Eniswiler,  14  La.  Aun.  658 ;  Gunter  v.  Leckey,  30  Ala  591 ; 
Sewall  V.  Joues,  9  Pick.  413. 


44  CONSTRUCTION. 

ally  than  may  be  necessary  to  effect  the  object  of  the  legisla- 
tor ;  that  the  jus  disponendi  is  a  vested  right,  protected  by  the 
constitution  of  the  United  States.^ 

And  it  has  been  so  frequently  held  that  there  can  be  no 
conveyaiirce  of  the  homestead,  so  as  to  bar  or  defeat  the  ex- 
emption right,  without  strict  compliance  with  the  terras  of 
the  governing  statute,  that  the  rule  may  be  considered  as  es- 
tablished.^ 

In  the  conve3^ance  of  homesteads,  strict  construction  is  the 
rule  in  the  interpretation  of  statutes  with  respect  to  the  exe- 
cution of  deeds  and  mortgages,  and  their  acknowledgnVerit.' 
The  official  certificate  of  the  acknowledgment  must  be  itt^tilF 
compliance  with  the  statutory  requirement.* 

But  the  rule  of  strict  construction  is  not  so  rigid  as  to  pre- 
vent the  correction  of  a  manifest  omission  in  the  mortgage  of 
a  homestead  given  by  both  husband  and  wife.  A  word  or 
figure  supplied  with  their  consent  after  signing,  duly  made  to 
appear  to  the  court,  will  not  render  the  instrument  nugatory.'^ 

"  The  homestead  right  can  be  barred  only  by  complying 
strictly  with  the  laws  prescribing  the  mode  of  alienation."  * 

§  10.  Law  of  Wife's  Property. 

Statutes  which  enlarge  the  wife's  power  over  her  separate 
property  are  generally  construed  strictly,  because  they  are 

1  Hughes  V.  Hodges.  102  N.  C.  236,  v.  Mills,  37  111.  78;  Fisher  v.  Meister, 
citing  Bruce  v.  Strickland,  81  N.  C.  24  Mich.  447 ;  Cross  v.  Everts,  28 
267 ;  U.  S.  Coust.,  art.  1,  §  31 ;  and  Tex.  532 ;  Barnett  v.  Mendenhall,  42 
holding  that  a  solvent  owner  may  la.  296 ;  Lanahan  v.  Sears,  102  U.  S. 
deed  his    land    without    his    wife's  318. 

joinder,  except  (1)  when  it  has  been  3  Wheeler  v.  Gage,  28  111.  App.  427. 
allotted  to  him  as  a  homestead;  ^iZ).;  Warner  v.  Crosby,  89  111.  320; 
(2)  when  there  are  judgment  liens  on  Best  v.  Gholson,  89  111.  465 ;  Smith  v. 
it  which  may  render  allotment  neces-  Miller,  31  111.  157  :  Boyd  v.  Cudder- 
sary ;  (3)  when  an  undefined  home-  back,  31  111.  113;  Yanzant  v.  Van- 
stead  has  been  reserved  in  a  mortgage  zant,  23  111.  485. 
given ;  (4)  when  the  conveyance  is  ^  Casler  v.  Byers,  29  111.  App.  128, 
fraudulent    and  no    homestead  has  and  129  111.  657. 

been  allotted  in  other  lands.     A  re-  ^  Greenough    v.    Turner,   77   Mass. 

valuation  is  not  allowable,  after  al-  332;  Connor   v.   McMurry,  84  Mass. 

lotment.  Gulley  v.  Cole,  102  N.  C.  333.  202  ;    Moore  v.  Titman,  33  111.  360 ; 

2  Connor  v.  McMurray,  2  Allen,  Kitchell  v.  Burgwin,  21  111.  45 ;  Hoge 
202 ;  Dickinson  v.  McLane,  57  N.  H.  v.  Hollister,  2  Tenu.  Ch.  606 ;  Dickin- 
31 ;  Hoge  v.  Hollister,  2  Tenn.  Ch.  son  v.  McLane,  57  N.  H.  31 ;  Howell 
606 ;   Black  v.  Lusk,  69  IlL  70 ;   Ives  v.  McCrie,  36  Kas.  636. 


LAW  OF  wifp:'s  property.  45 

innovations  upon  the  common  law,  and  are  considered  derog- 
atory to  lier  husband's  rights.  Courts  construe  tliem  as  not 
increasing  her  right  to  hold  and  administer  property,  or  to 
make  contracts,  further  than  the  natural  imjiort  of  the  words 
declare  and  authorize;  that  is,  that  the  law  increasing  her 
power  over  her  separate  property  is  not  to  be  liberally  con- 
strued.^ 

When  new  rights  are  conferred  upon  a  married  woman  rel- 
ative to  the  management  or  disposition  of  her  property,  or 
to  her  power  to  contract,  the  methods  prescribed  for  her  exer- 
cise of  such  rights  must  be  observed  substantially  in  letter  and 
spirit.- 

Since  laws  restraining  the  jus  disponendi  must  be  strictly 
construed  (as  shown  in  another  section  of  this  chapter),  the 
provisions  of  constitutions  and  statutes  which  forbid  the  hus- 
band from  alienating  the  homestead  without  the  consent  of  his 
wife  ^  are  inapplicable  to  the  alienation  of  it  by  her  when  she 
is  the  sole  owner.  She  may  convey  her  own  separate  property 
without  the  consent  of  her  husband,  though  it  constitute  the 
family  homestead,  notwithstanding  the  provisions  mentioned. 
For  the  inhibition  cannot  be  extended  by  implication,  so  as  to 
include  her  under  the  applicable  rule  of  construction.^ 

It  has  been  unwarrantably  inferred,  under  the  constitution 
above  cited,  from  her  right  to  alienate  her  separate  property 
used  as  a  family  homestead,  that  she  may  abandon  it,  desert 
her  husband,  give  him  notice  to  quit,  and  then  remove  him  by 

1  Sutherland  on  Stat,  c'onstr.,  §  400,  2  Mattox  v.  Hightshue,  39  Ind.  95 
citing  Compton  v.  Pierson,  28  N.  J.  Shumaker  v.  Johnson,   35  Ind.  33 
Eq.  229 ;  Cook  v,  Meyer,  73  Ala.  580,  Bagby    v.    Emberson,    79    Mo.    139 
583 ;  Gibson  v.  Marquis,  29  Ala.  668 ;  Hoskinson   v.    Adkius,   77   Mo.  537 
Canty  v.  Sanderford,  37  Ala.  91  (and  Bartlett  v.  O'Douoghue,  72  Mo.  563 
other  Alabama  cases);  Cunningham  McCallum  v.  Petigrew,  10  Heisk.  394 
V.  Hanney,  12  111.  App.  437 ;  Triplett  Leggate  v.  Clark,  111  Mass.  308 ;  Beck- 
V.  Graham,  58  Iowa,  135 ;  Quick  v.  man  v.  Stanley,  8  Nev.   257 ;  Arm- 
Miller,  103  Pa.   St.  67 ;  Dorris  v.  Er-  strong   v.    Ross,   20   N.    J.   Eq.    109 ; 
win,  101  Pa.  St.  239 ;  Pettit  v.  Fretz,  Montoursville  Overseers  v.  Fairfield, 
33  Pa.  St.  118;  Morgan  v.  Bolles,  36  112  Pa.  St.  99;  Miller  v.  Ruble,  107 
Ct.  175 ;  Weber  v.  Weber,  47  Mich.  Pa.  St.  395 ;  Innis  v.  Terapleton,  95 
569 ;   Longey  v.  Leach,  57  Vt.  377 ;  Pa.  St  262. 

Reynolds  v.  Robinson,  64  N.  Y.  589.  3  Const,  of  Mich.,  art  16,  §§  1-4 ; 

Contra:  Billings  v.  Baker,  28  Barb.  Stat  of  Wis.,  §§  2225-6. 

343 ;    Goss  v.   Cahill,  42  Barb.  310 ;  <  Price  v.  Osborn,  34  Wis.  34. 
De  Vries  v.  Conklin,  22  Mich.  255. 


46  CONSTKUCTION. 

action  of  ejectment.^  This  construction  is  at  variance  with  the 
law  of  domicile,  of  the  wifely  duties  and  of  the  letter  and  spirit 
of  the  law  of  marriage,  and  is  not  likely  to  be  followed  in 
states  other  than  that  in  which  the  decision  was  rendered. 
Evidently,  upon  her  own  return  to  the  homestead,  she  would 
have  no  right  to  enjoin  him  from  returning.  She  could  not 
treat  him  as  a  common  trespasser.  By  deserting  her  husband 
she  acquired  no  greater  right  over  her  property  than  she 
would  have  had  if  she  had  remained  at  their  common  domicile. 
She  could  have  conveyed  it  without  deserting  him,  and  the 
grantee  could  then  have  ejected  both,  so  that  they  would  go 
out  together,  and  the  mutual  conjugal  duties  would  not  have 
been  violated.  Considered  as  a  construction  of  the  constitu- 
tional provision  restraining  the  husband  only  from  alienating 
the  domicile  without  his  wife's  consent,  the  inference  drawn, 
from  her  right  to  sell  when  she  is  sole  owner,  that  she  may 
therefore  solely  abandon  it  and  then  force  him  to  do  so,  seems 
extreme. 

Under  prior  decisions,  the  husband  had  a  possessory  interest 
jointly  with  her,  and  her  desertion  of  him  and  the  family  and 
the  home  did  not  deprive  him  of  it.^ 

The  statute  of  another  state  which  gives  a  married  woman 
absolute  control  of  her  separate  property  is  construed  not  to 
enable  her  to  forbid  her  husband  from  entering  upon  the 
premises.' 

A  wife  cannot  oust  her  husband  from  the  homestead  while 
she  remains  his  wife,  though  living  apart  from  him,  unless  his 
conduct  would  justify  separation  or  divorce,  it  has  been  held;* 
and  the  exception  seems  groundless. 

The  restraint,  in  most  of  the  states,  applies  to  both  husband 
and  wife,  wiiichever  may  own  the  homestead.  Where  dedica- 
tion and  recordation,  of  the  property  set  a})art  as  exempt,  are 
required,  the  wife  alone  cannot  alienate  or  mortgage  her  own 
separate  property  thus  voluntarily  dedicated,  as  a  general  rule; 

•Buckingham  v.  Buckingham,  81  People,  26  Mich.  110;  Hodson  v.  Van 

Mich.  89.  FoBsen,  26  Mich.  69. 

2  See   Rowe  v.   Kellogg,  54  Mich.  »  Cole  v.  Van  Riper,  44  111.  63-4. 

209;  Griffin  V.  Nichols.  51  Mich.  579 ;  *  Manning  v.    Manning,   79  N.  G. 

Pardo  V.  Bitlorf ,  48  Mich.  275  ;  Henry  293. 
V.  Gregory,  29  Mich.  68;  Snyder  v. 


STATUTES    NOT    EXTENDED    BY    CONSTRUCTION.  47 

never,  when  the  constitution  or  statute  forbids  conveyance 
unless  made  by  both  spouses.  The  construction  is  strict,  and 
is  not  relaxed  in  favor  of  the  wife.'  Even  if  she  makes  her 
separate  deed  accordant  with  a  separate  one  given  by  her  hus- 
band, it  has  been  held  that  it  would  be  inoperative.^ 

She  cannot  renounce  homestead  in  a  separate  act  by  her, 
though  she  might  relinquish  dower.* 

And  even  where  formal  dedication  is  not  required,  the  right 
to  sell  her  own  homestead  has  been  qualified.  It  was  held  that 
when  abandoned  by  her  husband  she  may  sell  it.*  This  was 
held  under  a  constitution  which  forbids  the  alienation  of  the 
homestead  without  the  joint  consent  of  husband  and  wife 
when  the  owner  is  married.'^ 

§  11.  Statutes  Not  Extended  by  Construction. 

When  a  statute  does  not  reveal  the  intention  of  its  framers, 
and  the  proper  resorts  to  ascertain  the  meaning  (such  as  refer- 
ence to  the  debates  and  to  laws  in  j9aW  inateria)  fail  to  cast 
any  light,  it  cannot  be  rewritten  by  the  courts  under  their 
powder  of  construction.  Sense  must  be  made  of  it,  when  that 
can  be  done  legitimately.  The  interpreter  must  bring  the 
sense  out  of  the  statute  and  not  put  a  sense  into  it.**  That 
the  legislature  intended  to  express  something  is  a  manifestly 
rightful  presumption ;  yet,  if  nothing  is  found  to  be  expressed, 
after  all  rules  of  interpretation  have  been  exhausted,  it  is  plain 
that  the  legislature  has  failed  to  effectuate  the  intent. 

No  consideration  or  argument  drawn  from  the  rule  of  lib- 
eral construction  will  justify  a  court  in  adding  to  a  statute 
what  the  legislature  has  not  put  into  it.' 

1  Larson  v.  Butts,  22  Neb.  370 ;  P.  430.  Sullivan,  C.  J.,  said  for  the 
Swift  V.  Dewey,  30  Neb.  107 ;  Ault-  court :  "  It  is  contended  that  the 
man  v.  Jenkins,  19  Neb.  209.  homestead  and  exemption  statutes 

2  Cowgell  V.  Warrington,  66  la,  666 ;  should  be  liberally  construed.  We 
Clark  V.  Evarts,  46  la.  248 ;  Barnett  concede  this  proposition.  Section  4 
V.  Mendenhall,  42  la.  296.  of    the    Revised    Statutes    declares, 

3  Eisenstadt  v.  Cramer,  55  la.  753;  among  other  things:  'The  statutes 
Wilson  v.  Christophei&on.  53  la.  481.  of    this    state,  and    all  proceedings 

*  Hector  v.  Knox,  63  Tex.  613.  under  them,  must  be  liberally  con- 

*  Const,  of  Texas,  g§  50-2.  strued,  with   a  view  to  effect  their 
''Lieber's   Hermeneutics,   87;    Mc-     objects    and    to    promote    justice.' 

Cluskey  v.  Cromwell,  11  N.  Y.  601.        Aside  from  this  provision,  we  can 
"  Wright  V.  Westheimer  (Idaho),  28    hardly  conceive  the  necessity  or  pro- 


48  CONSTRUCTION. 

A  court,  usually  conservative,  has  said:  "By  reason  of  our 
meagre  legislation,  the  courts,  from  necessity,  by  liberal  con- 
struction and  intendment,  have  heen  forced  to  infringe  upon 
that  domain  which  more  j)7'operly  helongs  to  another  department 
of  the  government,  and  have  endeavored  as  best  they  could  to 
decide  some  of  the  questions  presented,  not  upon  general  rules 
founded  upon  hnown  and  fixed  principles  which  sJiould  govern 
all  cases,  but  simply  to  determine  the  particular  case  by  such 
rules  of  construction  and  analogy  as  were  considered  most 
applicable."  ^ 

There  are  parts  of  this  extract  which  indicate  that  rules  of 
construction  and  reasons  drawn  from  analogy  were  emploj^ed 
by  the  court,  though  there  is  the  frank  avowal  that  "  general 
rules  founded  upon  known  and  fixed  principles  which  should 
govern  all  cases"  were  not  thought  indis])ensable.  Neither 
"meagre  legislation,"  nor  any  plea  whatever,  can  justify  a 
court's  encroachment  upon  the  legislative  domain.  Nothing 
will  justify  the  extension  of  a  statute  by  construction,  so  as  to 
make  it  express  what  was  not  meant  by  the  framers.  There 
is  a  case  (which  will  be  cited  when  chattel  exemption  comes 
to  be  treated)  in  which  the  court  said  that  the  statute  ex- 
empted only  three  hundred  dollars  but  by  construction  the 
amount  had  been  increased  to  four  hundred.     By  such  con- 

priety  of  strictly  construing  a  stat-  ity  of  cases,  their  operation  is  bene- 

ute  of  mercy  or  benevolence.     But,  ficial  and  humane.     They  assure  to 

as  our  statutes  are  silent  upon  the  the  family  a  home.     '  They  mitigate 

question    imder    consideration,    this  the  harshness  of  the  cruel,  grasping 

court  will  not  undertake  to  supply  creditor,  and  give  to  the  unfortunate 

omissions  made  hy  the  law-making  debtor  a  place  of  refuge  and  a  gleam 

power.     This  court  must  distinguish  of  hope.'   We  are  of  the  opinion  that 

between  enacting  laws  and  constru-  an    amendment   of    our  homestead 

ing  them.     Through  motives  of  hu-  laws,  exempting  the  proceeds  from 

manity  towards  the  debtor  and  his  a  voluntary   sale  for   a    reasonable 

family,   exemption    and    homestead  time,  would  be  in  the  interest  of  hu- 

laws  have  been  enacted.     Prior  to  manity.     For,   however  much  such 

their  enactment  the  law  was  as  cruel  an  amendment  may  be  desired,  this 

as  Shylock  to  the  unfortunate  debtor,  court  will  not  assume  the  power  to 

and  his  wife  and  children  had  to  suf-  amend  the  statutes,  and  thus  usurp 

fer.     It  may  be  truthfully  urged  that  the  legislative   functions    of    a    co- 

they  sometimes   assist   unprmcipled  ordinate  branch  of  our  state  govern- 

nien  to  consummate  the  most  cruel  meut." 

frauds.    However,  in  the  vast  major-  i  Roco  v.  Green,  50  Tex.  489. 


STATUTES    NOT    EXTENDED    BY    CONSTRUCTION,  49 

structions  of  a  statute  as  those  above  mentioned,  it  may  be  lost 
in  its  clothes. 

It  is  not  common  for  courts  to  admit  that  they  go  bej^ond 
the  law,  but  there  are  many  instances  of  such  lapses  Avithout 
acknowledgment.  And  the  poverty  of  tlie  homestead  claim- 
ant, or  the  humanitarian  spirit  of  the  law,  is  made  the  reason 
for  the  judicial  enlargement  of  the  statute  in  many  a  particu- 
lar case,  when  the  fact  of  such  extension  is  not  stated  in  the 
opinion.  Not  only  has  homestead  without  occupancy  been 
awarded :  homestead  without  either  occupanc}''  or  family- 
headship  has  been  recognized  from  the  date  of  ownership  — 
subsequent  compliance  with  the  occupancy-condition  being 
held  to  retroact,  by  the  law  of  relation,  to  the  wedding-day, 
and  to  the  prior  day  of  the  purchase  of  vacant  land.'  A  young- 
freeholder's  destitution  of  other  land  was  adduced  as  a  reason 
for  granting  him  exemption  in  this,  and  his  attitude  as  one 
looking  for  his  bride  to  come  was  seriously  mentioned,  though 
the  statute  made  no  partial  provisions  for  such  situations,  and 
though  many  of  his  creditors  probably —  and  all,  possibly  — 
were  poorer  than  himself. 

Unless  the  principle,  on  which  the  decision  was  founded, 
has  warrant  in  the  statute  as  interpreted  by  a  fixed  rule  ap- 
plicable to  all  like  cases,  the  court  has  here  trenched  on  legis-  ■ 
lative  ground. 

When  a  statute  operates  on  conditions,  confers  a  benefit 
upon  the  performance  of  some  act  by  the  beneficiary,  and 
makes  no  provision  for  the  retroaction  of  the  performance  so 
as  to  make  the  benefit  anterior  by  the  law  of  relation,  the 
courts  cannot  render  the  condition  retroactive.  The  home- 
stead privilege  is  conferred  on  the  conditions  of  ownership, 
family  occupancy,  family'  headship,  and  sometimes  the  further 
one  of  dedication.  It  seems  very  clear  that  the  act  of  occu- 
pying a  home  cannot  render  it  exempt  back  to  the  date  of 
the  purchase  of  the  property  now  used  as  a  family  dwelling 
for  the  first  time,  unless  such  retroaction  is  expressed  or  im- 
plied in  the  statute. 

There  are  numerous  decisions,  however,  which  hold  such 
retroaction,  if  the  land-holder  has  meant  to  occupy,  though  a 
year  or  more  may  have  intervened  between  the  purchase  and 

1  Reske  v.  Reske,  51  Mich.  541. 


50  CONSTRUCTION. 

his  occupancy  of  the  property.  They  can  be  sustained  only 
on  the  ground  tliat  from  the  date  when  exemption  was  allowed 
by  law  or  constitutional  provision  the  creditor  had  notice. 
It  is  not  designed  to  adduce  the  cases  now,  as  they  will  be 
presented  hereafter,  especially  in  the  chapter  on  Occupancy. 
It  has  even  been  held  that  the  performance  of  this  condi- 
tion may  not  only  relate  back  to  the  date  of  the  purchase, 
but  also  to  that  other  requirement  —  family  headship:  so  that 
an  unmarried  man  may  become  a  land-holder,  get  married, 
settle  on  the  land  with  his  wife  at  his  leisure,  and  then  defeat 
a  judgment  rendered  when  he  had  neither  wife  nor  home.^ 

§  12.  Rival  "Equities." 

It  was  said  by  an  able  judge :  "  The  preservation  of  the 
homestead  is,  under  the  policy  of  our  law,  considered  of  more 
importance  than  the  payment  of  debts.  That  is  what  a  home- 
stead means  —  exemption  from  debts.  It  is  not  so  much  for 
the  debtor  as  for  the  debtor's  family.  And  the  family  of  the 
debtor  have,  in  this  respect,  equities  superior  to  the  creditor."  ^ 
Is  it  so?  Are  we  seriously  to  compare  the  value  of  home 
preservation  with  the  duty  of  debt-paying?  Are  there  any 
"equities"  to  be  marshaled  to  ascertain  which  is  "superior?" 
Is  the  family  to  be  housed  by  denying  a  creditor  what  is  due 
him?  Would  its  members  be  more  benefited  by  roof-shelter 
than  by  having  an  honest  husband  and  father? 

The  case  is  wrongly  put.  The  homestead  is  not  exempt 
from  debts  antecedent  to  the  passage  of  the  exemption  law, 
and  all  subsequent  ones  were  contracted  with  knowledge  on 
the  part  of  the  creditor  that  they  could  not  be  enforced 
against  the  homestead.  No  debt  that  exists  against  it  (such 
as  a  mortgage  debt  contracted  by  husband  and  wife)  is  put 
in  competition  with  any  homestead  "  equity,"  by  the  policy 
of  the  law.  On  the  contrary,  the  homestead  holder  must  pay 
it,  as  an  honest  man,  bound  to  benefit  his  family  by  setting 
good  example. 

There  is,  therefore,  no  creditor  of  the  homestead  (outside 
of  the  exceptions  made  by  the  statute),  to  come  into  rivalship 
with  the  beneficiaries,  to  be  denied  a  just  claim  because  they 
have  "  equities  superior." 

1  Reske  v.  Reske,  supra.  2  La  Rue  v.  Gilbert,  18  Kas.  220. 


I 


CONFLICTING    INTERPRETATIONS.  51 

The  constitution  and  laws  whence  the  policy  stated  was  in- 
ferred ^  do  go  very  far  towards  suggesting  the  denial  of  rights, 
when  it  is  ordained  in  the  former  that  the  homestead  of  given 
limits  "  shall  be  exempted  from  forced  sale  under  any  process 
of  law,"  except  for  taxes,  purchase-money  or  improvements. 
But  it  does  not  mean  that  a  creditor's  right  to  make  his  money 
out  of  a  homestead,  vested  in  him  before  the  debtor  and  his 
family  had  acquired  the  exemption  right,  may  be  brought  into 
competil^ion  with  the  latter  and  deferred  to  it.  And  no  such 
right  (unless  under  one  of  the  three  exceptions)  can  be  sub- 
sequently vested  in  him.  What  is  his  due,  the  law  accords. 
He  can  get  judgment  against  his  debtor,  the  head  of  the  home- 
stead family,  but  not  against  his  dwelling-house. 

The  learned  judge  doubtless  did  not  mean  that  the  creditor 
should  be  wronged  that  the  debtor  and  his  family  may  be  ben- 
efited. The  writer  objects  merely  to  the  comparison,  as  though 
these  were  claims  to  be  ranked  according  to  their  privilege. 

§  13.  Conflicting  Interpretations. 

It  has  already  appeared,  and  will  appear  more  palpably 
further  on,  that  there  is  not  perfect  agreement  in  the  construc- 
tion of  similar  statute  provisions  by  courts  of  different  states. 
What  is  the  profession  to  do  under  the  circumstances?  Let 
each  practitioner  respect  the  decisions  of  his  own  state  as  law 
within  its  borders,  when  they  are  settled,  yet  let  him  remem- 
ber that  if  they  are  demonstrably  wrong  they  will  be  entitled 
to  no  respect,  as  law,  in  other  states.  So,  when  he  finds  in  the 
reports  of  other  states  deliverances  which  are  not  supported 
by  good  reason,  and  especially  those  which  fail  to  follow  the 
statute  ostensibly  expounded,  let  him  discard  them  as  author- 
ity in  his  state. 

"  If  different  interpretations  are  given  in  different  states  to 
a  similar  law,  that  law,  in  effect,  becomes  by  interpretation, 
so  far  as  it  is  a  rule  for  action  by  the  federal  courts,  a  different 
law  in  one  state  from  what  it  is  in  another."  ^ 

It  is  true  that  interpretations  of  statutes  which  have  been 
long  acted  upon  cannot  be  suddenly  changed  without  public 
inconvenience  and  liabihty  to  injury.     Lord  Mansfield  said: 

1  Const.   Kansas,    art.    15,   sec.  9 ;        2  Christy  v.  Pridgeon,  4  Wall.  196. 
Gen.  Stat  (1889),  §  335. 


52  CONSTRUCTION. 

"  When  solemn  determinations,  acquiesced  under,  have  settled 
precise  cases  and  become  a  rule  of  property,  the}''  ought,  for 
the  sake  of  certainty,  to  be  observed  as  if  they  had  originally 
formed  a  part  of  the  text  of  the  statute."  ^ 

§  14.  Constitutional  Directions. 

The  legislature  of  a  state,  within  the  bounds  of  govern- 
mental legislation  and  the  limitations  imposed  by  the  federal 
constitution,  may  do  whatever  is  not  forbidden  by  the  state 
constitution,  provided  it  do  not  trench  upon  rights  reserved 
to  the  people.  The  inalienable  personal  rights  to  life,  liberty 
and  happiness  cannot  be  wantonly  disregarded;  in  other 
words,  tyranny  cannot  be  exercised  by  the  legislator. 

Within  the  bounds  mentioned,  the  legislature  may  do  what 
is  not  constitutionally  forbidden,  and  therefore  may  enact 
homestead  laws  without  express  authorization  by  the  consti- 
tution. But,  as  it  is  not  obliged  to  do  so  when  the  organic 
law  is  silent  on  the  subject,  it  may  be  required  to  do  so  by 
that  law.  It  is  ordained  in  several  state  constitutions  that 
the  legislature  shall  enact  a  homestead  law;  in  several  others, 
homestead  ordinances  are  incorporated  which  are  self-opera- 
tive; in  some,  directions  are  imposed.  Where  monetary  or 
chattel  exemption  is  ordained  by  the  constitution,  homestead 
of  realty  may  yet  be  left  subject  to  the  legislative  will,  or  it 
may  be  expressly  required  that  a  statute  authorizing  it  shall 
be  passed,  or  restrictions  upon  the  power  (existing  without 
such  requirement)  may  be  put  upon  the  legislature  by  the  con- 
stitution. 

Take  the  following  for  illustration:  '"'Every  householder  or 
head  of  a  family  shall  be  entitled  ...  to  hold  exempt 
from  levy  .  .  .  issued  on  any  demand  for  any  debt  hereto- 
fore or  hereafter  contracted,  his  real  and  personal  property, 
or  either,  including  money  and  debts  due  him,  whether  here 
tofore  or  hereafter  acquired  or  contracted,  to  the  value  of  not 
exceeding  two  thousand  dollars,  to  be  selected  by  him."  ^  This 
is  neither  a  homestead  ordinance,  nor  a  requirement  that  the 

1  "Wyndham  v.  Chetwynd,  1   Bur-  296 ;  Grantham  v.  Kennedy,  91  N.  C. 

row,    419;    Gilpelke  v.  Dubuque,    1  148;     Sedgwick  on  Stat.    &  Const 

Wall.    175 ;    State  v.   Thompson.    10  Law,  254. 

La.  Ann.   122;  Long  v.  Walker,  105  2  Const.  Va,  art.  11,  §  1. 
N.  C.  90;  Scott  v.  Kenan,  94  N.  C. 


CONSTITUTIONAL    DIRECTIONS.  53 

legislature  shall  enact  a  homestead  law :  it  is  exemption  of 
two  thousand  dollars  from  execution.  But,  following  this, 
there  is  direction  to  the  legislature :  "  The  general  assembly 
shall  .  .  .  prescribe  in  what  manner  and  on  what  condi- 
tions the  said  householder  or  head  of  a  family  shall  thereafter 
set  apart  and  hold,  for  himself  and  family,  a  homestead  out 
of  any  property  hereby  exempted,  and  may,  in  its  discretion, 
determine  in  what  manner  and  on  "vvhat  conditions  he  may 
thereafter  hold  for  the  benefit  of  himself  and  family  such  per- 
sonal property  as  he  may  have,  and  coming  within  the  exemp- 
tion hereby  made."  ^  The  distinction  apparent  here  between 
"  a  homestead  out  of  any  property,"  and  "  personal  property," 
indicates  that  realty  ma}^  be  set  apart  as  a  homestead  while 
there  j^et  may  be  personal  property  exempt,  provided  both  do 
not  exceed  the  monetary  limitation.  The  provision  relative 
to  the  realty  is  mandatory  while  that  respecting  personalty  is 
directory.  The  mandate  is  confined  to  the  regulating  of  the 
homestead  if  the  householder  sliould  elect  to  take  part  or  all 
of  his  constitutional  exemption  in  that  form. 

Pursuant  to  the  mandate,  the  legislature  enacted,  among 
other  things:  "The  homestead  provided  in  this  act  shall 
continue  after  his  [the  householder's]  death,  for  the  benefit  of 
the  widow  and  children  of  the  deceased,  until  her  death  or 
marriage,  and  after  her  death  or  marriage  for  the  exclusive 
benefit  of  his  minor  children,  until  the  youngest  child  becomes 
twenty-one  years  of  age,  after  which  period  it  shall  pass,  ac- 
cording to  the  law  of  descents,  as  other  real  estate,  or  as  may 
be  devised  by  said  householder,  not  being  subject  to  dower, 
yet  subject  to  all  debts  of  the  said  householder  or  head  of  a 
family."  ^ 

This  exemption  was  held  constitutional,  as  being  in  harmony 
with  the  above  mandate  and  direction,  and  as  containing  noth- 
ing inhibited;  so,  upon  the  expiration  of  the  homestead  priv- 
ilege, the  property  saved  by  it  may  be  subjected  to  forced  sale 
to  pay  any  or  all  of  the  householder's  debts  accrued  either 
before  or  after  the  homestead  was  set  apart.'* 

The  exemption  may  not  continue  after  the  death  of  the 
householder,  though  he  leave  a  widow  and  children.     For  the 

1 16.,  g  5.  3  Hanby  v.  Henritze,  85  Va.  177. 

2  Code  of  Va.  (1873),  ch.  183,  §  8. 


54  CONSTRUCTION. 

exemption  is  from  debts :  how,  if  there  be  none?  "  It  is  clear," 
said  the  court  in  exposition  of  the  above-quoted  provisions  of 
constitution  and  statute,  "  that  if  the  householder  dies  intes- 
tate, and  there  are  no  debts  as  against  which  the  homestead 
can  be  held  exempt,  the  exemption  ceases  altogether,  and  the 
land  therefore  set  apart  as  a  homestead  goes,  if  the  intestate 
died  seized  of  an  estate  of  inheritance,  according  to  the  stat- 
ute of  descents,  to  the  heirs  at  law,  subject  to  the  widow's 
right  of  dower,  if  the  intestate  leaves  a  widow."  ^ 

On  the  other  hand,  though  the  householder  may  not  have 
exercised  his  privilege  of  claiming  homestead,  his  widow  may 
claim  it  for  herself  and  the  children,  if  he  left  debts.'-  If  both 
forego  claimmg,  and  the  debts  equal  the  estate  in  amount, 
the  whole  property  must  be  distributed  ratably  among  the 
creditors  unless  some  of  them  are  entitled  to  priority.^  If 
either  have  claimed  homestead  yet  waived  it  in  favor  of  cer- 
tain creditors,  all  of  the  creditors  share  alike  the  excess  above 
exemption,  and  the  homestead  is  last  touched  by  those  fa- 
vored by  the  waiver.^  If  the  householder  has  made  a  general 
waiver  of  homestead,  his  widow  cannot  disregard  it,  and  claim 
after  his  death.® 

The  exemption  affects  creditors  —  not  heirs.  I^o  "  estate  of 
homestead  "  is  created  so  as  to  affect  title  by  descent.  The 
householder  is  entitled  to  a  real  estate  exemption  and  not  a 
mere  right  to  claim  homestead.  This  was  held  in  a  case  in 
which  an  insolvent  claimed  it,  after  having  fraudulently  con- 
veyed the  most  of  his  realty  to  his  wife,  then  made  an  assign- 
ment in  bankruptcy  and  claimed  the  full  monetary  exemp- 
tion out  of  the  property  surrendered.  Not  getting  his  claim 
allowed  in  the  bankrupt  court,  he  set  it  up  against  the  realty 
which  he  had  conveyed  to  his  wife,  after  his  conveyance  was 
set  aside  for  fraud.  Homestead  exemption  was  awarded  to 
him  out  of  this  property.**  It  was  so  done  on  the  above  cited 
articles  of  the  constitution,  and  on  prior  decisions  holding  that 
"  where  a  conveyance  is  set  aside  for  fraud,  at  the  suit  of  the 

1  Barker   v.    Jenkins,  84  Va.  895 ;  *  lb.;   Strange   v.   Strange,  76  Va. 

Helm  V.  Helm,  30  Gratt.  404.  240. 

,    2  Scott  V.    Cheatham,   78  Va.   82;  5  Reed  v.  Union  Bank,  29  Gratt.  719. 

Hatorff  V.  Wellford,  27  Gratt.  356.  6  Hatcher  v.  Crew's  Adm.,  83  Va. 

3  lb.;  Code  of  Va.,  ch.  126,  §  25.  371. 


CONSTITUTIONAL    DIRECTIONS,  65 

grantor's  creditors,  he  is  not  estopped  as  against  them  to  as- 
sert his  claim  of  homestead  in  the  property  embraced  in  tho. 
deed."  ^  A  small  sum  had  been  allowed  the  insolvent  by  the 
bankrupt  court  —  less  than  a  hundred  dollars  —  so  he  was  al- 
lowed to  eke  it  out  to  the  full  limit  of  two  thousand,  out  of  the 
land  which  he  had  sworn  was  not  his  — not  being  estopped 
by  his  oath.2  It  had  previously  been  held  that  a  debtor  may 
supplement  his  original  homestead  to  make  the  aggregate 
equal  the  maximum  allowance.^ 

Ordination  in  a  constitution  that  homestead  exemption 
"shall  be  construed  liberally  to  the  end  that  all  intents  thereof 
may  be  fully  and  properly  carried  out,"  *  is  nothing  more  than 
an  insertion  of  the  well  known  rule  of  interpretation  that  the 
intention  of  the  legislature  must  be  respected.  Courts  w^ould 
have  been  bound  to  do  this  in  the  absence  of  the  mandate 
quoted,  'No  greater  obligation  rests  upon  them  by  reason  of 
the  application  of  the  rule  to  a  particular  subject  by  the  con- 
stitution framers. 

Constitutional  provisions  relative  to  homesteads  cannot  be 
departed  from  by  the  judiciary,  in  the  exercise  of  equitable 
jurisdiction,  to  declare  any  indebtedness  a  lien  on  such  favored 
property,  unless  the  debt  be  such  as  is  excepted  from  the  ex- 
emption.^ 

By  some  state  constitutions,  the  homestead  is  declared  "  ex- 
empt from  attachment,  levy  or  sale,  on  any  mesne  or  final 
process  issued  from  any  court."  ^  In  construing  such  a  pro- 
vision, the  court  sa3's  that  it  must  take  effect  in  one  of  two 
modes :  either  by  creating  remedial  rights,  in  certain  persons, 
enforceable  by  action  or  defense,  or  by  limiting  the  jurisdiction 
of  the  court.  If  the  constitution  prohibits  judicial  process,  the 
levy  of  an  execution  on  the  exempt  property  would  be  abso- 
lutely void.  The  defendant  may  do  nothing  yet  be  secure.  The 
statutory  requirement  that  the  debtor  must  assert  his  right  of 

1  Shipe   V.   Repass,  28   Gratt.   734 ;        *  Const.  Va.,  art.  XI,  sec.  7. 
Boynton  v.  McNeal,  31   Gratt.   459 ;        ^  Jenkins  v.  Simmons,  37  Kas.  496 : 
Marshall  v.  Sears,  79  Va.  49.  "  The  constitution  of  the  state  pre- 

2  Hatcher  v.  Crews'  Adm.,  supra.        scribes  the  manner  of  its  [the  lien's] 
s  Oppenheimer  v.  Howell,  76  Va,     creation,  and  this  must  be  strictly 

218.     Hatcher's  fraudulent  convey-    followed." 

ance  set  aside  in  Hatcher  v.  Crews,        ^  Const.  S.  C,   art.    II,   §  32,     See 

78  Va.  460.  Const,  of  Ga,  (1877),  art  IX,  §g  1,  2,  4, 


56  CONSTRUCTION. 

exemption  if  he  would  avail  himself  of  it  would  be  nugatory, 
and  even  derogatory  to  the  constitution,  under  this  construc- 
tion, A  sale  on  mortgage  foreclosure,  except  for  purchase- 
money,  would  be  invalid.  A  valid  lien  might  be  defeated  by  a 
subsequently  arising  right  of  homestead  exemption.  The  court 
concluded :  "  That  such  consequences  do  not  flow  from  the  con- 
stitution is  evident,  not  only  from  the  consideration  of  the 
principles  of  construction,  but  from  the  opposite  conclusions 
reached  by  this  court,  in  general  harmony  with  the  views 
that  have  prevailed  wherever  the  system  of  homestead  exemp- 
tions has  been  adopted.  On  the  other  hand,  the  conclusion 
that  the  constitution  intended,  as  its  proper  effect,  the  invest- 
ing of  the  debtor  with  a  right  of  exemption  that  must  be  as- 
serted,    ...  is  clear."  ^ 

1  Pender  v.  Lancaster,  14  S.  C.  25. 


CHAPTER  III. 


FAMILY  HEADSHIP. 


§  1,  The  Constitution  of  the  Family. 

2.  Tlie  Headship  of  the  Husband. 

3.  United  Headship    of    Husband 

and  Wife. 

4.  Desertion  by  the  Wife. 

5.  Divorce;  Effect  on  Homestead. 

6.  Divorce ;  Forfeiture  by  Divoi'ced 

Party. 


§  7.  Acquisition     by    Widower    or 
Widow. 

8.  Unmarried  Beneficiary. 

9.  Lack  or  Loss  of  Family. 

10.  Claiming  after  Loss  of  Family. 

11.  Comment. 


§  1.  The  Constitution  of  the  Family. 

Family  headship  is  as  important  a  condition  as  ownership 
and  occupancy,  and  more  generall}^  required  than  dedication, 
wien  the  privilege  of  home  exemption  is  to  be  accepted  under 
the  statutory  offer.  It  is  not  a  condition  universally  requisite 
but  is  very  general.  The  legislator,  to  secure  the  stability  of 
family  homes  already  established  on  real  estate  owned  and 
occupied  by  the  housekeeper  with  his  wife  and  children,  or 
with  either,  or  Avith  other  dependents  wdiere  they  are  recog- 
nized by  statute  as  members  of  the  family,  has  provided  that 
his  homestead,  as  defined  or  limited  by  law,  shall  be  free  from 
liability  to  forced  sale  by  ordinary  creditors,  while  his  own 
right  to  incumber  or  alienate  it  is  partially  restrained. 

Not  his  own  benefit  only,  but  that  of  his  family ;  not  the 
benefit  of  both  only,  but  that  of  the  public,  is  the  purpose  of 
the  legislature  in  thus  favoring  homes  to  secure  their  stability. 
Homes  are  the  units  which,  summed  up,  compose  the  state; 
they  are  the  factors  which  make  up  political  society. 

The  head  of  a  family,  usually  the  owner  of  the  residence 
occupied  by  himself  and  his  wife  and  children  (or  by  other 
dependents  where  the  statute  includes  them  as  members  of  the 
legal  family),  is  not  only  himself  a  beneficiary,  but  the  repre_ 
sentative  and  trustee  of  the  other  beneficiaries  under  his 
charge.^ 

1  Moore  v.  Parker,  13  S.  C.  490. 


58  FAMILY    HEADSHIP. 

The  conjugal  and  parental  relations  are  the  family  elements 
which  the  legislator  has  in  view  when  providing  immunity  for 
homes.  It  is  not  likely  that  any  homestead  law  would  ever 
have  been  passed,  had  all  families  been  mere  aggregations  of 
persons  without  bonds  of  kinship  and  affection.  It  is  the 
father's  and  mother's  fireside,  with  their  children  around  it, 
which  such  laws  have  primarily  in  view  when  guarding  the 
home  against  forced  sale  and  against  private  sale  by  one  parent 
alone.  It  is  their  home  and  their  family  which  the  state  is 
most  interested  in  protecting  and  fostering  and  encouraging. 
But,  in  the  absence  of  the  conjugal  and  parental  relations, 
there  are  groups  of  persons  which  appeal  to  the  legislator  for 
protection :  a  son  supporting  his  aged  parents ;  a  brother  main- 
taining a  dependent  sister,  and  the  like.  Some  statutes  ex- 
pressly name  the  classes  of  persons,  outside  of  such  relatives, 
who  may  be  homestead  beneficiaries. 

The  word  "family,"  as  commonly  employed,  carries  the 
idea  of  members  related  to  each  other  by  blood  or  affinity. 
It  is  a  relation  of  status;  not  one  of  mere  agreement  or  con- 
tract. In  this  sense,  servants  or  employees  are  not  members ; 
and  a  man  or  woman  is  not  the  head  of  a  family  who  has  only 
such  persons  living  with  him  or  her.^ 

The  householder,  claiming  homestead  immunity,  must  be 
under  legal  obligation  to  support  the  members  of  his  house- 
hold who  are  dependent  upon  him.  Dependence  alone  is  not 
sufficient  —  the  obligation,  on  his  part,  seems  to  be  the  test.^ 
In  a  broad  sense,  not  only  parents  and  their  children,  but 
domestics  and  others  composing  the  household  are  bound  to- 
gether by  mutual  relations  —  one  of  the  group  being  the  pro- 
tector and  provider  while  the  others  are  his  dependents  or 
subalterns ;  ^  but  obligation  to  support  them  may  be  wanting. 
The  relation  of  master  and  servant,  being  one  of  contract  and 

1  Murdock  v.  Dalby,  13  Mo.  App.  41,  2  Galligar  v.  Payne,  84  la.  Ann. 
47 ;  Cahoun  v.  McLendon,  43  Ga.  406 ;  1057 ;  Dendy  v.  Gamble,  64  Ga.  528 ; 
Garaty  v.  Da  Bose,  5  S.  C.  498.     See  Lathrop  v.  Ass'n,  45  Ga.  483 ;  Roco 
Wade  V.  Jones,  20  Mo.  75 ;  Re  Lamb-  v.  Green,  50  Tex.  490 ;  Hill  v.  Frank- 
son,   2  Hughes,  233 ;   Whitehead  v.  lin,  54  Miss.  632. 
Nickelson,  48  Tex.  530 ;  Howard  v.  3  Wilson  v.  Cochran,  31  Tex.  6C0 ; 
Marshall,  48  Tex.  471 ;  Seaton  v.  Mar-  Taylor  v.  Boulware,  17  Tex.  74. 
shall,  6  Bush,  429 ;  Sallee  v.  Walters, 
17  Ala.  488. 


THE    CONSTITUTION   OF   THE    FAMILY.  59 

not  of  social  status,  is  not  the  family  relation.  All  such  rela- 
tions, when  there  is  no  duty  on  the  part  of  the  householder 
to  support  those  living  with  him,  are  be3^ond  the  contempla- 
tion of  the  homestead  laws  in  their  provision  for  exemption, 
as  a  general  rule.^ 

The  statutory  inclusion  of  "  persons  dependent  for  support " 
on  the  householder,  as  members  of  the  family,  so  as  to  entitle 
him  to  homestead  exemption,  has  been  declared  not  to  em- 
brace orphans  voluntarily  housed,  brought  up  and  supported 
by  the  claimant  who  was  under  no  legal  or  natural  obligation 
to  foster  them.  "However  praiseworthy  "  .  .  .  the  char- 
ity "  may  be,  the  law,  in  its  justice  and  wisdom,  will  not  per- 
mit him  to  impose,  on  his  honest  creditors,  the  burden  of  his 
bounty."  ^ 

"  Dependent  for  support  "  means  actual  and  necessary  de- 
pendence by  persons  unable  to  earn  a  livelihood,  who  have 
some  natural  claira.^ 

It  is  argued  that  if  one  could  obtain  a  homestead  as  the 
head  of  a  family  of  members  whom  he  is  not  bound  in  law  to 
support,  he  might  refuse  to  support  them  after  obtaining  it  and 
become  sole  beneficiary.* 

The  moral  obligation  to  support  dependents  has  been  thought 
sufficient  to  render  the  obligor  entitled  to  the  homestead  priv- 
ileges when  such  dependents  compose  his  family."     There  can 

1  Wilson  V.  Cochraa,  31  Tex.  680;  did  it  render  them  beneficiaries,  under 
Calhoun  v.  McLendon,  43  Ga.  406 ;  Ga.  Const,  of  1868.  Dendy  v.  Gam- 
Marsh  V.  Lazenby,  41  Ga.  153;  Sears  ble,  64  Ga.  528;  Blackwell  v.  Brough- 
V.  Hanks,  .14  O.  St.  298;  Barney  v.  ton,  56  Ga.  392.  And  in  Mississippi, 
Leeds,  51  N.  H.  253 ;  Whalen  v.  Cad-  the  shelter  of  an  adopted  daughter 
man,  11  la.  226;  Garaty  v.  Du  Bose,  and  her  husband,  who  supported 
5  S.  C.  498 ;  Sanderlin  v.  Sanderlin,  1  themselves,  did  not  render  the  house- 
Swan,  441.  holder  a  head  of  family  so  as  to  en- 

2Galligar  v.    Payne,  34  La.  Ann.  title  him  to  the  exemption  of  his 

1057.    (See  dissenting  opinion.)    Tay-  residence  from  sale  under  execution, 

lor  V.  Elvin,  31  La.  Ann.  283.  Hill  v.  Franklin,  54  Miss.  632. 

SDecuir  v.   Benker,   33  La.   Ann.  ^Cox  v.  Stafford,  14  How.  (N.  Y.) 

820;  Cox  V.  Stafford,  14  How.  (N.  Y.)  521 ;  Blackwell  v.  Broughton,  56  Ga, 

521 ;  Whalen  v.  Cadman,  11  la.  226 ;  390 ;  Greenwood  v.  Maddox,  27  Ark. 

In  re  Lambsou,  2  Hughes,  233.  658 ;  Wade  v.  Jones,  20  Mo.  75 ;  Par- 

*In   Georgia,  a  householder's  de-  sons  v.  Livingston,  11  la.  104;  Allen 

pendent  sister  and  her  children,  liv-  v,  Mauasse,  4  Ala.  554 ;  Counoughton 

ing  with  him,  did  not  constitute  his  v.  Sands,  32  Wis.  387 ;  State  v.  Kane, 

family  m  such  a  sense  as  to  entitle  42  111.  App.  42. 
him  to  a  homestead  as  the  head,  nor 


60  FAMILY    HEADSHIP. 

be  no  such  moral  duty  when  there  are  no  lawful  means  of 
performing  it:  therefore,  to  hold  that  the  duty  of  paying 
honest  debts  must  give  way  to  this  (as  has  bcem  held  or  in- 
timated),^ seems  untenable. 

When  there  is  legal  obligation  to  support  persons  who  are 
not  the  children  of  the  family  head,  the  right  to  accquire  a 
homestead  exists  in  the  householder.-  It  is  not  such  legal  ob- 
ligation as  arises  from  a  contract  to  support  persons,  for  a 
consideration,  who  have  no  claim  otherwise  on  the  house- 
holder, but  it  is  where  he  is  bound  to  maintain  them  as  mem- 
bers of  his  family  without  an}?^  corresponding  compensation 
contributed  on  their  part. 

§  2.  The  Headship  of  the  Hushand. 

The  declaration  or  dedication  of  the  homestead  is  usually  by 
the  husband  and  father,  as  the  representative  of  the  family. 
The  statutes  generally  require  that  the  owner  and  occupant 
of  the  property  to  be  set  apart  shall  be  a  householder  over 
a  family ;  and  the  husband  and  father  usually  answers  that 
description.  It  is  his  household  especially  which  the  legis- 
lator means  to  protect  in  their  home,  though  the  benefits  of 
the  homestead  provisions  are  not  limited  to  families  in  which 
the  conjugal  and  parental  relations  exist. 

The  husband,  in  dedicating  his  own  propert}^  to  family  pur- 
poses under  the  homestead  law  of  his  state,  and  recording  it 
as  thus  set  apart,  voluntarily  gives  certain  rights,  present  and 
prospective,  to  his  wife  and  children,  beyond  those  which  they 
had  before.  Or,  if  he  lives  in  a  state  Avhere  formal  declara- 
tion and  recording  are  not  required,  he  is  presumed  to  have 
consented  to  the  conferring  of  such  rights  upon  his  family  by 
marrying,  becoming  a  father,  and  occupying  his  home.  As 
the  representative  of  his  family,  he  controls  the  home,  makes 
the  selection  of  the  property  they  are  to  live  upon,  and  may 
change  his  domicile  at  will,  though  he  is  not  free  to  alienate 
it  by  his  own,  separate  act.  In  acquiring  homestead,  the  ac- 
tion of  the  family  head  concludes  the  members  composed  of 
his  wife  and  children.^ 

1  McMurray  v.  Sliuck,  6  Bush,  111 ;  ^Neal  v.  Sawyer,  62  Ga.  352;  Mor- 
La  Rue  v.  Gilbert,  18  Kas.  220.  rill  v.   Hopkius.  36  Tex.  686 ;  Hart- 

2  Marsh  v.  Lazenby,  41  Ga,  158.  man    v.    Thomas,   37    Tex.    90    {see 


THE    HEADSHIP    OF    THE    HUSBAND.  61 

Tlie  wife  and  children  are  bound  in  duty  to  live  wherever  the 
husband  and  father  makes  his  home.  His  domicile  is  theirs. 
His  right  of  homestead  immunity,  and  theirs,  depends  upon 
their  keeping  together.  He  cannot  make  their  residence  apart 
from  his,  and  cut  off  their  right  to  occupy  the  homestead  with 
himself,  without  forfeiting  it.  But  his  temporary  absence, 
while  the  right  to  return  to  the  hearth-stone  remains,  and 
while  his  home  continues  to  be  theirs,  does  not  affect  his  family 
headship. 

A  father  who  has  his  children  at  school  away  from  home, 
or  temporarily  separated  from  him,  in  any  way,  while  his  re- 
lation to  them  as  his  family  continues,  is  still  the  head  of  it, 
and  may  become  the  declarant  of  a  homestead  in  his  and  their 
behalf.^  It  is  necessary,  however,  that  he  should  retain  the 
position  of  householder.'-  Though  living  temporarily  alone,  he 
controls  the  children  who  are  under  his  charge,  is  responsible 
for  them,  keeps  a  home  for  them,  and  answers  the  purpose 
which  the  law  has  in  view  in  making  him  the  beneficiary  of 
the  homestead  provisions. 

The  subordinate  beneficiaries  are  not  affected  by  every  act 
of  their  head.  What  would  expose  the  home  place  to  forced 
sale  under  ordinary  circumstances  would  not  necessarily  do 
so  after  the  rights  of  such  beneficiaries  have  been  conferred. 
What  might  work  forfeiture,  if  he  stood  alone,  will  not  al- 
ways affect  their  vested  rights.  A  judgment  rendered  against 
him  for  tort,  which  could  be  enforced  by  execution  against  any 
other  real  estate  of  his.  cannot  be  executed  against  his  home- 
stead, in  some  states,  because  of  the  rights  and  interests  of 
the  wife  and  children  in  that  particular  property,  and  because 
of  the  policy  of  the  state  to  conserve  it  for  the  family.* 

The  parental  relation  is  tenderly  cherished  by  the  state. 
The  right  of  the  father  to  have  a  home  for  them  protected 
from  the  hammer  of  the  official  auctioneer  is  recognized  and 
secured  in  all  the  homestead  states.     The  natural  relation  is 

Walker  v.  Young,  37  Tex.  519) ;  Daw-  ler,  65  111.  146 ;  Clubb  v.  Wise,  64  111. 

sou  V.  Holt,  44  Tex.  174 ;  Nevins'  Ap-  157  ;  Buck  v.  Conlogue,  49  111.  391 ; 

peal,  47  Pa.  St.  230 ;  Hand  V.  Winn,  53  Wright    v.    Dunning,    46    111.    271; 

Miss.  788 ;  Camp  v.  Smith,  61  Ga.  449 ;  Brown  v.  Coon,  36  III.  243. 
Howze  V.  Howze,  2  S.  C.  232 ;  Rich-        i  Seaton  v.  Marshall,  6  Bush,  429. 
ards  V.  Green,  73  111.  54;  Shepard  v.        2Veile  v.  Koch,  27  111.  129. 
Brewer,  65  111.  383 ;  Burson  v.  Fow-        3  Couroy  v.  Sullivan,  44  111.  451. 


62  FAMILY    HEADSHIP. 

everywhere  regarded  as  a  sacred  one  which  the  law  must  re- 
spect. But  there  is  not  quite  the  same  consideration  paid 
to  the  artificial  relation  existing  between  persons  and  their 
adopted  children.  Ordinarily,  when  the  adoption  is  by  some 
legally  required  act,  the  parental  relation  is  deemed  to  have 
been  established  by  compliance  with  the  requirement,  and  the 
law  extends  its  recognition  and  protection  as  though  the  rela- 
tion were  natural.  So  far  as  homestead  protection  to  artifi- 
cial families  is  concerned,  the  governing  statute  of  each  state 
must  be  consulted.  One  may  stand  in  loco  parentis  to  children 
whom  he  has  adopted ;  or  those  whom  he  has  brought  into 
his  family  by  marriage  wath  their  mother,  so  as  to  become 
their  representative,  capable  of  bestowing  homestead  rights 
and  protection  upon  them  by  selecting  such  property  for  the 
purpose  as  the  law  allows  to  be  dedicated.^  The  interests  of 
the  state  may  be  subserved ;  the  good  of  society  may  be  pro- 
moted, and  therefore  the  policy  of  homestead  legislation  car- 
ried out,  by  the  recognition  of  his  family  headship. 

The  family  head  must  be  domiciliated  in  the  state  where  he 
seeks  to  acquire  homestead,  according  to  most  of  the  statutes. 
Were  the  rule  otherwise,  he  might  have  several  protected 
properties ;  indeed,  he  might  have  one  in  each  homestead  state, 
and  thus  turn  what  the  legislators  meant  as  beneficial  to  the 
state  into  a  great  abuse. 

Some  of  the  statutes  confine  the  privilege  of  acquiring  home- 
stead immunity  to  citizens.  The  word  citizen  is  used  in  dif- 
ferent senses  Whether  the  word,  as  employed  in  an}^  of 
those  statutes,  exclusively  means  a  person  either  native  born 
or  naturalized,  is  open  to  judicial  construction. 

Where  the  right  of  acquiring  homestead  immunity  is  con- 
fined to  citizens  of  the  state,  it  has  been  held  that  a  resident 
or  inhabitant  may  acquire,  though  he  is  not  a  citizen  in  the 
political  sense.^ 

Actual  residence,  without  reference  to  citizenship,  will  en- 

1  Chamberlain  v.  Brown,  33  S.  C.  2  McKenzie  v.  Murphy,  24  Ark.  155 ; 

597;  11  S.  E.  439;  Sauderlin  v.  San-  Cobbs  v.  Coleman,  14  Tex.  594;  Peo- 

derliu,  1  Swan,  441 ;  Moyer  v.  Drum-  pie  v.  McClay,  2  Neb.  7;  Hawkins  v. 

mond,  32  S.  C.  165 ;  10  S.  E.  952 ;  Ca-  Pearce,  11  Humph.  44 
pek  V.  Kropik,  129  111.  509.    Compare 
Be  Lambson,  3  Hughes,  233 ;  post,  §  7. 


UNITED    HEADSHIP    OF    HUSBAND    AND    WIFE.  63 

able  a  head  of  a  family  to  declare  upon  his  property,  when 
citizenship  is  not  made  indispensable.' 

There  is  difference  between  the  head  of  a  family  who  is 
married,  and  one  who  is  single,  with  reference  to  the  convey- 
ance of  the  homestead.  So,  if  a  deed  absolutely  conveying 
the  homestead  of  the  grantor,  upon  its  face,  be  offered  in  evi- 
dence, the  fact  that  he  is  a  married  man  may  be  proved  by 
parol ;  and  the  effect  will  be  to  strike  the  deed  with  nullity  if 
he  only  has  signed  it,  when  the  law  requires  that  his  wife  shall 
sign  also,  to  make  the  conveyance  valid.- 

The  terms  "  married  man  "  and  "  head  of  a  family  "  are  not 
synon3nnous.' 

When  the  statute  provides  that  the  head  of  a  family  may 
have  a  homestead  exempted  in  land  owned  by  him,  the  hus- 
band, as  such  head,  cannot  have  the  homestead  carved  upon 
his  wife's  land,  nor  is  she  entitled  to  have  one  upon  her  own 
land.  Both  together  cannot  assert  the  homestead  right  in  her 
land  as  against  a  judgment  on  their  joint  debt.^ 

He  is  the  head,  and  to  him  and  his  property  the  statute  re- 
fers. But,  were  she  the  head,  there  would  be  no  reason  for 
denying  her  homestead  on  her  own  land  (no  judgment  now 
considered) ;  for  the  use  of  masculine  pronouns  in  the  statute 
would  be  of  no  consequence. 

§  3.  United  Headship  of  Husband  and  Wife. 

The  law  recognizes  husband  and  wife  as  the  united  head  of 
their  family  for  homestead  purposes.  It  allows  either  to  own 
the  property  upon  which  the  homestead  privilege  of  both  is 
based.  It  allows  either  to  claim  the  benefit  when  the  other 
does  not ;  and  the  plaintiff  may  ask  immunit}^  from  debt  on 
his  or  her  own  separate  property,  or  on  that  of  the  other 
spouse,  or  on  community  property,  as  the  title  and  the  gov- 
erning law  may  be. 

Both  the  marital  partners  constitute  one  head  of  the  family, 
in  some  sense ;  the  husband  alone  is  usually  named  in  the 

iDawley  v.   Ayers,   23    Cal.    108;  3  Id;  Thompson  v.  King  (Ark),  14 

Williams    v.   Young,    17    Cal.    403 ;  S.  W.  925 ;  Railway  Co.  v.  Adams,  46 

Lowe  V.  Stringham,  14  Wis.  222.  Ark.  159. 

2  McLean  v.  Ellis  (Tex.),  15  S.  W.  *  Turner  v.  Argo,  89  Tenn.  443. 
394 ;  Howard  v.  Zimpelman  (Tex.),  14 
S.  W.  62. 


64:  FAMILY    HEADSHIP. 

books  as  ilie  head,  as  in  common  parlance.  It  is  the  home 
of  parents  and  children  whicli  the  legislator  especially  seeks  to 
conserve.  Though  there  be  no  children,  the  husband  and  wife 
compose  such  a  family  as  the  homestead  provision  seeks  to 
favor.'  The  law  favors  the  marital  relation.  Especially  do 
the  homestead  laws  favor  it.  Two  persons  bound  by  no  ties, 
such  as  two  partners  in  business,  living  together,  would  not 
constitute  a  family,  while  a  married  pair  are  accorded  family 
privileges,  under  those  laws. 

The  wife  may  represent  the  united  head  in  applying  for 
homestead,  at  his  request,  or  upon  his  neglect  to  apply  in  be- 
half of  the  family.^  If  the  title  is  owned  by  the  husband  in 
fee,  it  has  been  held  that  he  only  can  declare  homestead,  or 
have  it  accorded  upon  application.* 

The  wife  need  not  state  in  her  declaration  that  she  makes  it 
because  her  husband  has  not  done  so.  She  should  aver  the 
fact  that  he  has  not  done  so,  and  that  she  makes  it  for  the 
joint  benefit  of  both.'*  The  assignment  of  reasons  w^ould  be 
advisable  even  where  not  required.  If  he  has  assented  to  her 
application,  it  would  be  better  to  aver  it ;  but  the  circumstances 
may  be  such  that  his  assent  would  be  presumed  when  she  ap- 
plies in  behalf  of  the  family.' 

If  he  is  away  upon  business,  or  is  an  invalid,  or  has  habitu- 
ally intrusted  to  her  the  conduct  of  his  business,  the  presump- 
tion would  be  the  more  readily  recognized. 

If  the  wnfe  owns  the  fee,  she  is  the  proper  person  to  have  it 
made  the  family  reservation  or  exempt  home.®  She  has  thus 
the  dedication  of  her  own  separate  property.  Her  degree  of 
competency,  however,  varies  in  different  states.'' 

But  if  she  is  childless,  and  the  wife  of  a  non-resident,  she  is 
incompetent  to  claim  homestead.^     In  such  case,  she  would 

1  Kitchell  V.  Burgwin,  21  111.  40 ;  nally  v.  Havdwick,  61  Ga.  501 ;  Far- 
Trotter  V.  Dobbs,  38  Miss.  198 ;  Partee    ley  v.  Hopkins,  79  Cal.  203. 

V.  Stewart,  50  Miss.  721 ;  Cox  v.  Staf-        3  Richards  v.  Greene,  73  111.  54 
ford,  14  How.  (N.  Y.)  521.  ^  Farley  v.  Hopkins,  79  Cal.  203 ; 

2  McPhee  v.  O'Rouvke,  10  Colo.  301 :     Booth  v.  Gait,  58  Cal.  254. 

Bowen  v.  Bo  wen,  55  Ga.  182 ;  Cheney        °  Connally  v.  Hardwick,  61  Ga.  501. 
V.  Rogers,  54  Ga.  168 ;  Smith  v.  Ezell,        epartee  v.  Stewart,  50  Miss.  720. 
51  Ga.  570 ;  Page  v.  Page,  50  Ga.  597 ;        ^  Fusilier  v.  Buckner,  28  La.  Ajoin. 
Larence  v.  Evans,  50  Ga.  216 ;  Con-    594. 

SKeiffer  v.  Barney,  31  Ala.  196. 


1 


UNITED    HEADSHIP    OF    HUSBAND   AND    WIFE.  «,         65 

represent  no  family  within  the  state.  She  would  stand  alone^ 
and  therefore  would  not  be  entitled  to  a  privilege  accorded  to 
families.  The  state's  interest  is  in  family  homes,  so  far  as 
homestead  laws  subserve  it. 

A  husband  having  had  all  his  separate  property  set  apart  as 
a  homestead,  his  wife  cannot  have  another  one  set  apart  out 
of  her  property  for  the  benefit  of  herself  and  her  children  — 
two  of  whom  are  hy  a  former  husband  and  one  by  the  present 
head  of  the  family  —  though  all  three  of  the  children  are 
minors.^  She  is  not  the  head  of  a  family  while  she  has  a  hus- 
band, and  any  proceeding  to  give  her  alone  a  homestead,  as 
such,  would  be  a  nullity.- 

Where  homestead  privileges  are  accorded  by  law  to  "  every 
resident"  of  the  state,*  may  the  husband  and  the  wife  each 
claim,  so  that  the  united  head  of  the  family  can  have  two 
homesteads?  Each  is  a  "resident  of  the  state."  It  is  held 
that  though  they  are  two  residents  in  the  ordinary  acceptation 
of  the  word,  they  are  one  for  homestead  purposes,  so  that, 
living  together,  they  cannot  have  two  exempt  residences.  If, 
for  instance,  the  wife  is  the  legal  owner,  so  that  the  home- 
stead could  not  be  sold  for  his  debts  even  in  the  absence  of  an 
exemption  law,  he  cannot  have  another  tract,  which  belongs 
to  him,  saved  from  execution  for  his  debts.* 

The  object  of  the  legislator  is  to  conserve  the  home  occupied 
by  the  family;  not  to  protect  two  homes  of  one  married  pair 
from  the  claims  of  creditors.-' 

It  is  of  little  importance  whether  the  homestead  be  owned 

1  Neal  V.  Sawj'^er,  63  Ga.  353.  him,  exempt  from  sale  on  any  final 

2  J6.;  Camp  v.  Smith,  61  Ga.  449,     process  obtamed  on  any  debt,  with 
451.  specified  exceptions.    The  homestead 

3  Ala.  Code,  1886,  §  2507.  right  and  exemption  continue  during 
*  Beard   v.  Johnson,  87   Ala.  729 :     the   life  of  the  beneficiary  and  the 

in  which  Tyler  v.  Je%vett,  83  Ala.  93,  minority  of  his  children,  and  during 
and  Discus  v.  Hall.  83  Ala.  159,  are  the  widowhood  of  his  widow  if  she 
distinguished  from  it.  See  Partee  v.  has  no  homestead  in  her  own  right 
Stewart,  50  Miss.  717.  Const,  art  10,  g§  3,  3,  5.  When,  by 
5  See  Weiner  v.  Sterling,  61  Ala.  98 ;  allotment,  the  wife's  right  to  home- 
Bender  V.  Meyer,  55  Ala.  576,  rendered  stead  has  arisen,  it  cannot  be  diverted 
under  the  former  code  of  Alabama,  without  her  consent  given  by  sign- 
g  2830.  In  North  Carolina,  every  ing  the  deed  for  conveyance.  Gil- 
resident  of  the  state  has  the  righ^  of  more  v.  Bright,  101  N.  C.  383 ;  Gan- 
homestead  in  his  land  allotted  to  son  v.  Baldwin  (Mich.),  53  N.  W.  171. 
5 


GQ  FAMILY    HEADSHIP. 

by  the  head  of  the  family  occupying  it,  or  by  one  of  the  other 
members.  If  the  family  would  be  rendered  homeless  by  its 
sale,  the  result  would  be  what  the  legislator  designed  to  pre- 
vent. Sale  by  creditors  of  the  husband-father,  or  by  those  of 
another  member  owning  the  property,  would  be  the  same  in 
result.^ 

§  4.  Desertion  hj  the  Wife. 

A  husband  does  not  cease  to  be  the  head  of  a  family,  in  the 
eye  of  the  law,  by  reason  of  his  desertion  by  his  wife.  As 
the  head,  he  keeps  his  home  to  which  she  may  return.  While 
the  marriage  relation  exists,  he  is  what  the  homestead  law 
means  by  the  term  "  head  of  a  family,"  though  he  has  no  fam- 
ily but  his  wife,  and  she  has  left  the  home.^  Should  he  die, 
she  would  become  a  widow;  and  her  desertion  of  her  husband 
is  not  everywhere  treated  as  an  abandonment  of  the  home- 
stead, so  as  to  cut  her  off  from  her  rights  as  survivor.' 

The  relation  of  marriage  is  so  sacred,  and  the  sanctity  of 
the  family  home  so  reverenced  by  the  law,  that  so  long  as 
there  is  hope  of  such  a  deserter's  return  to  the  domestic 
hearth,  her  legal  right  to  do  so  is  respected.  TTer  bonds  of 
wedlock,  not  severed  by  judicial  decree,  hold  fast  till  death. 

A  wife  who  left  her  husband  because  of  his  ill-treatment  of 
her,  and  resided  away  from  his  home,  but  visited  it  frequently 
to  nurse  him  in  sickness,  was  held  not  to  have  abandoned  her 
home,  nor  to  have  forfeited  her  rights  as  a  wife  under  the 
homestead  law.* 

But  there  are  several  cases  which  hold  that  a  wife,  by  de- 
serting her  husband  without  cause,  and  living  apart  from 
him  till  his  death,  forfeits  all  right  to  the  homestead  held  by 
him  when  he  died.' 

1  Carolina  N.  Bank  v.  Senn,  25  their  majority,  and  their  removal, 
S.  C.  572,  581.  See  Norton  v.  Brad-  does  not  affect  the  right  of  the  hus- 
ham,  21  S.  C.  881 ;  Bachman  v.  Craw-  band  as  "head  of  the  family,"  under 
ford,  3  Humph.  213.  the  laws  of  Arkansas. 

2  Gates  V.  Steele,  48  Ark.  539;  3  Lindsey  v.  Brewer,  60  Vt  627; 
Brown  v.  Brown's  Adm'r,  68  Mo.  Lamb  v.  Wogan,  27  Neb.  236 ;  JVIeader 
388 ;  Whiteliead  v.  Tapp,  69  Mo.  415 ;  v.  Place,  43  N.  H.  308 ;  Atkinson  v. 
Pardo  V.  Bittorf,  48  Mich.  275.  See  Atkinson,  37  N.  H.  435 ;  40  N.  H.  249 ; 
Stanley  v.  Snyder,  43  Ark.  429,  which  Wood  v.  Lord,  51  N.  H.  448. 

holds  that  even  the  death  of  the  wife,        *  Lamb  v.  Wogan,  27  Neb.  236. 
and  the  arrival  of  the  children  at        ^  Cockrell  v.  Curtis  (Tex.),  18  S.  W. 


divorce;  effect  on  homestead.  67 

Such  penalty  for  causeless  neglect  of  wifely  duties  seems 
just,  and  one  that  all  legislatures  well  might  adopt.  The  pol- 
icy of  the  homestead  provision  is  defeated  by  illegal  separa- 
tions of  spouses,  so  that  the  reasons  for  exemption  cease  to 
apply. 

The  wife's  voluntary  desertion  of  both  husband  and  hearth- 
stone has  been  held  an  abandonment  of  the  homestead,  and  to 
be  equivalent  to  voluntary  failure  of  occupancy  by  a  widow. 
Where  occupancy  is  an  essential  condition,  required  of  all  ben- 
eficiaries, including  widows,'  the  deserting  wife  was  treated 
as  though  she  had  voluntarily  left  the  exempt  premises  after 
ceasing  to  be  a  wife.  It  is  intimated  that  the  decision  might 
have  been  different,  had  she  been  driven  from  home  by  her 
husband,  and  been  kept  out  of  it  by  a  tenant  after  her  hus- 
band's death,^  Intentional  leaving,  in  ignorance  of  her  rights, 
may  forfeit  her  homestead.^ 

A  wife  deserted  her  husband,  avowed  her  intention  never 
to  return,  wrote  urgently  for  him  to  sell  the  farm,  and  finally 
sold  it  herself  to  one  who  reconveyed  to  him.  She  w^as  held 
to  have  abandoned  the  homestead.*  Certainly,  she  had  given 
up  all  idea  of  using  it  as  the  legislator  designed.  The  benefi- 
cent purpose  to  promote  the  welfare  of  the  state  by  encour- 
aging happy,  thrifty,  children-rearing  homes,  is  not  very  well 
furthered  by  the  reckless  separations  of  married  parties,  now 
so  common,  which  evince  contempt  for  that  purpose. 

§  5.  Divorce ;  Effect  on  Homestead. 

It  is  held  that  when  granting  a  divorce,  whether  because  of 
the  fault  of  the  husband  or  the  wife,  the  court  may  assign  the 
possession  of  the  homestead  to  her,  though  the  title  be  in  him.^ 

It  would  seem,  at  first  vievs^,  that  the  court  could  not  oust 
the  husband  from  the  homestead  and  award  sole  custody 
to  the  wife.     She,  not  having  title,  derived  her  sole  right  to 

436;    Duke    v.   Reed,   64  Tex.   705;        2  Foster  v.  Leland,  141  Mass.  187. 
Sears  v.  Sears,  45  Tex.  557 ;  Earle  v.        3  Paul  v.  Paul,  136  Mass.  286. 
Earle,  9  Tex.  630 ;  Trawick  v.  Harris,        *  Farwell,     etc.    Co.    v.    McKenaa 

8  Tex.  312.  See  Blessing  v.  Edmond-  (Mich.),  48  N.  W.  959. 
son,  49   Tex.    333 ;  Newland   v.  Hoi-         &  Brandon  v.  Brandon,  14  Kas.  342 ; 

land,  45  Tex.  588;  Farwell,  etc.  Co.  v.  Blankenship  v.  Blankenship,  19  Kas. 

McKenna  (Mich.),  48  N.  W.  959.  159. 
»  Abbott  V.  Abbott,  97  Mass.  136. 


68  FAMILY    HEADSHIP. 

the  benefit  of  the  homestead  protection  by  her  union  with  her 
husband,  and  therefore  it  would  seem  reasonable  that  her 
right  would  cease  upon  the  dissolution  of  the  marriage  rela- 
tion. Being  at  liberty  to  contract  a  second  marriage,  she 
Avould  apparently  be  acting  beyond  the  spirit  of  the  law  by 
taking  another  man  to  share  her  homestead  privilege  on  prop- 
erty belonging  to  her  first  husband.  Her  only  interest  is  by 
operation  of  law,  and  she  should  be  kept  within  the  purview 
of  the  legislator  Avhen  he  made  the  beneficent  provisions  for 
married  women  under  the  homestead  laws.  Especially,  when 
divorce  is  granted  to  the  husband,  against  the  wife,  for  viola- 
tion of  marriage  duties  in  any  way,  would  it  seem  unconscion- 
able for  the  court  to  take  his  property  and  give  it  to  her  in 
possession;  to  take  his  home,  sacred  from  creditors,  and  give 
it  to  her  who  has  proved  unworthy  to  share  the  roof-tree  and 
hearth-stone  with  him  and  their  children.  Was  not  her  right 
to  the  occupancy  of  the  home  dependent  upon  his  right? 
Had  she  any  claim  upon  it  but  what  came  from  her  union 
Avitli  him? 

On  the  other  hand,  the  husband  who  has  obtained  a  divorce 
from  his  wife  might  marry  another:  he  would  be  denied  the 
right  of  taking  her  to  his  own  property  because  his  former 
wife  is  in  occupancy,  under  the  rule  laid  down.  At  his  death, 
his  widow  and  children  would  be  kept  out  of  the  property  till 
the  divorced  woman's  death,  if  indeed  the  inheritance  would 
not  be  impaired  under  some  statutes.  And  would  the  posses- 
sion of  the  divorced  wife  preclude  creditors  from  making  their 
money  out  of  this  property  of  his  from  the  time  it  ceased  to 
be  his  homestead? 

However  plausible  these  considerations  and  queries  may  be, 
there  is  another  side  to  the  argument,  which  has  judicial 
favor.  The  granting  of  the  divorce  and  the  adjustment  of 
property  interests  are  cotempcraneous.  The  homestead  is 
that  of  both  husband  and  wife,  though  he  owns  it ;  both  have 
the  right  of  possession  before  the  divorce;  one  must  have  it 
afterwards,  and  the  court  may  decree  that  she  shall  be  the 
one.  Neither  had  the  sole  right  of  incumbering,  alienating 
or  enjoying  it,  before  they  Avere  legally  parted  from  each 
other;  their  homestead  rights  were  equal.  Where  there  is 
statutory  authorization  given  to  the  court  to  give  to  the  wife 


divorce;  effect  on  homestead.  69 

such  share  of  her  husband's  real  and  personal  property  as 
shall  be  just  and  reasonable,  when  divorce  is  granted  for  the 
fault  of  either  the  husband  or  the  wife,'  the  court  may  award 
her  the  homestead.^ 

And  the  court  may,  though  the  wife  be  at  fault,  and  the 
divorce  be  granted  against  her.  give  her  a  judgment  for  ali- 
mony with  lien  on  the  homestead  owned  by  the  husband, 
under  the  same  statutory  authorization.* 

Whether  by  exposure  to  sale  under  a  lien,  or  by  transfer  to 
the  wife  in  making  division  of  property,  the  husband  loses  his 
homestead  — loses  his  possession  of  it  or  his  property  in  it  — 
he  becomes  entitled  to  select  a  new  homestead.  He  and  his 
divorced  partner,  being  now  no  longer  one,  may  each  have  a 
homestead.  To  his  newly-dedicated  exempt  residence,  he 
may  take  his  new  bride  —  the  supposititious  one  before  men- 
tioned. To  the  old  place,  the  divorced  woman  may  welcome 
her  new  husband,  and  over  his  head  will  be  cast  the  protect- 
ing shield  of  the  law  preventing  forced  sale. 

It  was  held  that,  upon  divorce  granted  a  husband  against 
his  wife  for  wrongs  done  him  by  her,  consisting,  in  part  at 
least,  of  excluding  him  from  their  home  after  wrongfully  in- 
ducing him  to  convey  the  title  of  it,  and  of  other  property,  to 
her,  there  should  be  equitable  division  of  the  property  between 
them.'* 

A  divorced  woman,  occupying  her  homestead  acquired  in 
her  late  husband's  lands  before  the  decree,  and  having  her 
children  with  her,  has  been  held  entitled  to  retain  it.^  When 
all  the  children  are  assigned  to  her  in  the  divorce  decree,  she 
and  they  continue  the  family — not  the  isolated  husband. 
Homestead  being  for  the  family  and  not  for  a  smgle  person, 
there  would  seem  to  be  reason  for  giving  her  and  the  children 
the  use  of  one  acquired  when  the  husband  was  a  member  of 
the  family.  The  fact  that  it  was  carved  out  of  his  separate 
property  ought  not  to  deter,  for  its  dedication  as  the  family 
homestead  was  done  by  himself,  or  with  his  consent. 

1  Kansas  Laws  of  1870,  p.  180.  ■*  Snodgrass  v.  Snodgrass,  40  Kas. 

2  Brandon  v.  Biandon,  14  Kas.  342,     494. 

345.  '"  BIan<ly  v.  Asher.  72  Mo.  27.     See 

3  Blankenship  v.   Blankenship,    19    Stanim  v.  ytainni,  11  Mo.  App.  .598. 
Kas.  159. 


70  FAMILY    HEADSHIP. 

After  a  husband  and  wife  bad  permanently  separated,  even  by 
agreement  and  without  divorce  or  judicial  separation  from  bed 
and  board,  she  was  awarded  the  right  of  acquiring  and  holding 
property  as  if  she  had  been  legally  divorced,  and  of  having 
homestead  protection  in  the  property  she  occupied  as  a 
home.^ 

If  it  be  conceded  that  he  had  the  same  right,  and  if  he 
availed  himself  of  it,  the  result  would  have  been  two  home- 
steads for  the  undivorced  couple.  The  statute  contemplated 
one  for  each  family.  The  domicile  of  the  wife  is  that  of  her 
husband.  Homestead  laws  favor  marriage  and  home:  not 
lawless  separation  and  half-homes. 

Thoufi:h  the  husband  obtain  a  divorce  ao^ainst  his  wife,  the 
property  that  was  their  homestead  may  be  awarded  to  her.^ 
He  obtains  the  divorce  for  cause.  She,  being  in  the  wrong, 
does  not  have  the  award  as  of  right,  with  reference  to  the  di- 
vorce. But,  with  reference  to  the  estate  to  be  divided,  it  may 
be  better  for  all  concerned  that  she  should  have  the  home 
place  —  he  having  his  rights  in  other  property.  Especially, 
where  there  is  an  infant,  or  young  children,  may  it  be  bet- 
ter for  her  and  them  to  remam  undisturbed  in  the  family 
home.  The  circumstances  of  each  case  may  determine  the 
disposition  of  the  children  and  the  assignment  of  the  home- 
stead property  to  either  spouse.  When  the  wife  obtains  di- 
vorce from  her  husband,  if  the  terms  of  the  decree  award  the 
homestead  to  her  "  in  trust  for  her  support  and  for  that  of  the 
children,"  no  trust  is  created  but  an  absolute  estate  is  trans- 
ferred to  her,  it  is  held.^ 

Community  property  deeded  by  a  husband  to  his  wife,  after 
their  divorce,  gives  her  title ;  and,  the  homestead  being  thereon, 
she  alone  may  incumber  it  thereafter.'*  It  is  not  still  a  home- 
stead, however,  where  the  property  loses  that  character  on 
the  dissolution  of  the  marriage,  so  that  either  spouse  may  con- 
vey whatever  belongs  to  him  or  her.^  The  reason,  upon  which 
rests  the  requirement  that  both  must  join  in  alienating  the  prop- 

i  Kenley  v.  Hudelson,  99  111.  493;  ^  Ih.;  Gimmy  v.  Doane,  22  Cal.  638; 

S.  C,  39  Am.  Rep.  31.  Shoeniake  v.  Chalfant,  47  Cal.  432. 

-'Stockton  V.  Knock,  73  Cal.  425.  See  Stockton  v.  Knock,  73  Cal.  425; 

3  Simpson  v.  Simpson,  80  Cal.  237.  Lowell  v.  Lowell,  55  Cal.  316. 
^Grupe  V.  Byers,  73  Cal.  271. 


divorce;  j:ffect  on  homestead.  71 

erty,  disappears  when  both  cease  to  be  one.  No  family,  no 
homestead. 

Under  the  provision  that  "  a  homestead  or  real  estate  in  the 
possession  of,  or  belonging  to,  each  head  of  a  family,"  to  the 
extent  of  one  thousand  dollars  of  value,  shall  be  exempt  dur- 
ing his  life  and  shall  inure  to  his  widow  and  children  at  his 
death,^  it  is  held  that  the  right  of  homestead  exists  in  land 
held  by  the  husband  and  wife  as  tenants  by  entireties;  and 
that  a  wife,  on  obtaining  a  divorce  with  a  decree  vesting  the 
homestead  in  her,  may  assert  her  right  against  her  husband's 
creditors.  If  she  has  joined  with  her  husband  in  a  mortgage 
to  secure  certain  of  his  debts,  she  is  not  thereby  precluded 
from  holding  the  homestead  as  exempt  against  his  other 
debts.' 

A  homestead,  which  was  community  property,  was  occu- 
pied by  the  wife  and  children  after  her  divorce  from  her  hus- 
band. There  had  been  no  division  of  the  estate,  when  the 
divorce  was  pronounced,  as  the  statute  directed  to  be  done." 
In  a  suit  brought  for  partition,  it  was  held  that  the  divorced 
parties  held  the  property  as  tenants  in  common,  just  as  though 
they  had  never  been  married;  that  it  should  be  partitioned, 
and  the  husband's  part  rendered  liable  to  forced  sale,  while 
the  wife's  part  continued  exempt  because  she  still  occupied 
the  homestead  with  the  children.* 

1  Tenn.  Code,  §  2935.  sided   upon    the    property  as    their 

2  Jackson  v.  Shelton  (Tenn.),  16  homestead.  In  the  year  1882,  they 
S.  W.  142,  overruling  CuUam  v.  were  divorced,  without  any  mention 
Cooper  (Tenn.),  Dec.  Term,  1888,  and  or  disposition  of  their  property.  The 
distinguishing  Avans  v.  Everett,  3  divorced  wife  continued  to  reside 
Lea,  76.  Judges  Snodgrass  and  Lur-  upon  the  property,  and  maintain 
ton  dissented.  their  minor  children,  without  assist- 

3  Texas  Rev.  Stat,  art,  2864.  ance  from  her  former  husband.     In 
*Kirkwood  v.  Domnan  (Tex.),  16    the  year  1885,   Allen,  the  divorced 

S.  W.  428.    Henry,  J. :  This  suit  was  husband,  executed  a  deed  of  trust 

brought  by  the  defendants  in  error  upon  the  property  to  secure  a  debt 

for  partition  of  a  house  and  lot  in  that  he  owed  the  defendants  in  error, 

the  city  of  Waco.     Bettie  Kirkwood  under  which  the  property  was  sold 

was  once  the  wife  of  G.  W.  Allen,  and  conveyed  to  defendants  in  error. 

The   property    in    controversy    was  The  divorced  wife  was  still  residing 

purchased  during  the  existence  of  upon   the   property   at  the   date  of 

her  marriage  with  Allen,  and  was  these    transactions.      Shortly    after 

their    community    property.      They  the  execution  of  the  deed  of  trust  she 

had  some  minor  children,  and  re-  married  Kirkwood,  and  continued  to 


T2 


FAMILY    HEADSHIP. 


§  6.  Divorce;  Forfeiture  by  Divorced  Party. 

Forfeiture  of  interest  in  the  homestead  estate  may  be  made 
a  penalty  for  the  violation  of  marital  vows,  or  for  any  wrong- 
doing in  the  marriage  relation  for  which  divorce  is  granted 


raside  on  the  land.  It  was  agreed 
that  the  land  could  not  be  equitably 
partitioned,  and  that,  if  the  court 
found  in  favor  of  the  plaintiffs,  it 
should  be  sold  without  the  interven- 
tion of  commissioners  for  the  pur- 
pose of  partition..  The  cause  was 
tried  without  a  jury,  and  a  decree 
was  rendered  directing  a  sale  of  the 
land,  and  a  division  of  the  proceeds 
of  sale  equally  between  plaintiffs  and 
the  defendant  Bettie  Kirkwood ; 
"  and  that  each  party  pay  the  costs 
by  him  incurred,  to  be  deducted 
from  the  share  in  said  proceeds  be- 
longing to  such  party."  It  is  con- 
tended for  plaintiffs  in  error  that  the 
homestead  privilege  of  the  wife  sur- 
vived the  divorce,  and  consequently 
that  the  deed  of  trust  executed  by 
her  former  husband,  and  all  of  the 
proceedings  thereunder,  were  pro- 
hibited by  our  constitution  and  laws. 
It  is  provided  by  our  statutes  that 
"  the  court  pronouncing  a  decree  of 
divorce  from  the  bonds  of  matri- 
mony shall  also  decree  and  order  a 
division  of  the  estate  of  the  parties 
in  such  a  way  as  to  the  court  shall 
seem  just  and  right,  having  due  re- 
gard to  the  rights  of  each  party  and 
their  children,  if  any ;  provided, 
however,  that  nothing  herein  con- 
tained shall  be  construed  to  compel 
either  party  to  divest  him  or  herself 
of  the  title  to  real  estate."  Rev.  St., 
art.  2864.  Allen  and  his  wife,  while 
their  marriage  subsisted,  each  owned 
an  undivided  one-half  interest  in  the 
property  in  controversy.  It  was  in 
the  power  of  the  court  that  decreed 
the  divorce,  under  the  statute,  not 
only  to  make  such  a  decree  with  re- 
gard to  the  use  of  the  homestead  as 


would  properly  protect  the  wife  in 
its  use,  but  it  might  also  have  pro- 
vided for  its  protection  and  use  by 
the  minor  children  of  the  marriage, 
subject  only  to  the  prohibiting  clause 
that  the  decree  should  not  have  the 
effect,  in  form  or  in  substance,  of  di- 
vesting the  husband  of  his  title  to 
one-half.  We  think,  however,  that 
the  husband's  interest  in  the  property 
can  be  so  charged  only  in  the  divorce 
suit,  and  as  a  part  of  the  decree  of 
divorce.  It  not  having  been  then 
done,  the  former  husband  and  wife 
stood  towards  each  other,  after  the 
decree  of  divorce,  as  if  they  had 
never  borne  that  relation  to  each 
other.  They  then  owned  the  prop- 
erty as  tenants  in  common,  and  sub- 
ject to  all  the  rules  and  regulations 
of  strangers  bearing  to  each  other 
that  relation.  Whetstone  v.  Coffey, 
48  Tex.  269.  Bettie  Kirkwood,  hav- 
ing a  family,  had  a  homestead  inter- 
est in  the  one  undivided  half  of  the 
proi^erty  that  was  owned  by  her ; 
and  that  interest  was  protected  from 
forced  sale.  But  she  had,  no  more 
than  any  other  tenant  in  common, 
the  right  to  hold  or  occupy  her  co- 
tenant's  share,  or  to  prevent  its  being 
partitioned.  As  it  could  not  be  par- 
titioned without  being  sold,  it  was 
not  witiiin  the  meaning  of  the  pro- 
vision of  the  constitution  that  for- 
bids a  forced  sale  of  a  homestead. 
To  so  hold  would  require  that  the 
constitution  should  be  construed  to 
forbid  a  partition  of  land  owned  by 
tenants  in  common  when  it  is  resided 
upon  by  one  of  the  co-tenants,  who 
happens  to  be  entitled  to  the  home- 
stead exemption,  and  it  is  incapable 
of  being  equitably  partitioned  with- 


divorce:  forfeiture  by  divorced  party. 


73 


against  the  party  at  fault. ^  Even  if  the  wife  obtain  the  di- 
vorce, she  may  lose  her  homestead  right  as  a  consequence  of 
thus  ceasing  to  be  a  member  of  the  family,  though  she  would 
not  lose  her  dower.- 

Pursuant  to  statute,  it  is  held  that  a  mortgage  given  by  the 
husband  only  is  valid  as  to  the  homestead,  if  the  wife  subse- 
quently forfeits  her  right  in  the  premises  by  obtaining  a  di- 
vorce. Though  she  should  survive  him,  and  have  the  custody 
of  the  children  given  her  by  order  of  court,  neither  she  nor 
they  have  any  right  of  homestead  as  against  the  mortgagee. 
They  are  not  deemed  members  of  his  family  from  the  time  of 
the  divorce  and  the  judicial  decree  therein  giving  her  the  cus- 
tody of  the  children.* 

A  divorce,  with  the  custody  of  the  children,  being  granted 
to  the  wife,  does  not  divest  the  husband's  homestead  of  its 
exempt  character.* 


out  being  sold.  Clements  v.  Lacy, 
51  Tex.  150.  In  such  a  case,  the  ex- 
empt interest  in  the  land  must  be 
converted  into  money,  and  the  ex- 
emption will  then  attach  to  that. 
The  constitution  exempts  the  home- 
stead from  forced  sale,  "  except  for 
the  purchase-money  thereof,  or  a 
part  of  such  purchase-money,  the 
taxes  due  thereon,  or  for  work  and 
material  used  in  constructing  im- 
provements thereon."  If,  when  the 
land  is  sold  for  partition,  the  costs  of 
the  suit  are  deducted  from  the  pur- 
chase-money, it  is  equivalent  to  a 
forced  sale  for  tlie  payment  of  the 
costs  of  a  partition  suit,  a  purpose 
not  found  among  those  enumerated 
in  the  constitution.  The  fact  that 
the  costs  are  incident  to  the  suit  for 
partition  does  not  necessarily  control 
the  question  ;  they  may  be  adjudged 
and  collected  as  a  personal  demand 
and  as  costs  usually  are.  We  do  not 
think  that  there  was  any  error  in 
the  proceedings,  except  in  directing 
that  the  costs  adjudged  against  the 
defendants  be  deducted  from  Betty 


Kirkwood's  share  of  the  money  pro- 
ceeding from  the  sale  of  the  land. 
We  think  that  there  was  error  in 
that  part  of  the  decree,  and  it  will 
therefore  be  reversed,  and  here  ren- 
dered, corresponding  in  all  respects 
with  the  decree  appealed  from,  ex- 
cept that  the  costs  adjudged  against 
the  defendants  shall  be  a  personal 
charge  against  them,  and  not  against 
the  proceeds  of  the  sale  of  the  land. 

1  In  Illinois,  there  is  such  provision. 
Both  dower  and  homestead  right  are 
lost  by  having  divorce  granted 
against  the  one  otherwise  entitled 
thereto.  Section  2  of  the  Exemption 
Act,  and  section  14  of  the  Dower  Act, 
are  construed  together.  Rendleman 
V.  Rendleman,  118  111.  257.  For  gen- 
eral effect  of  divorce,  see  Barrett  v. 
Failing,  111  U.  S.  523. 

2Stahl  V.  Stahl,  114  111.  375. 

3  Rev.  L.  of  Vt,  §  1894;  Heaton  v. 
Sawyer,  60  Vt.  495;  Whiteman  v. 
Field,  53  Vt.  554 ;  Gen.  Stat,  of  N.  H., 
ch.  124 ;  Wiggin  v.  Buzzell,  58  N.  H, 
339. 

4  Woods  V.  Davis,  34  la  264. 


74  FAMILY    UEAD8HIP. 

There  are  circumstances  under  which  the  judicial  deliver- 
ance, exj)ressed  in  the  last  sentence,  would  be  of  wide  if  not 
general  application.  The  divorced  husband  may  have  chil- 
dren by  his  first  wife,  who  are  still  minors  living  with  him. 
He  may  have  children  by  the  second  wife  who  obtainr  a  di- 
vorce from  him.  The  breaking  of  the  bonds  of  wedlock  sep- 
arates the  family  into  two.  Why  may  not  he,  still  the  hr;ad 
of  the  family,  be  accorded  the  homestead,  while  she  has  other 
property  assigned  to  her  which  she  may  dedicate  as  the  home- 
stead of  her  family,  composed  of  herself  and  her  children? 

While  the  husband  may  retain  his  homestead,  under  the 
statute  of  his  state,  after  having  acquired  it  as  the  head  of  a 
family,  though  his  wife  may  have  obtained  a  divorce  against 
him,  and  she  may  have  been  awarded  the  custody  of  the  chil- 
dren,^ and  he  literally  may  have  no  family  left  him,  he  has 
been  allowed  to  retain  his  homestead;  but  he  could  not  now 
declare  upon  an  original  homestead,  as  he  is  not  the  head  of 
a  family.^ 

The  wife  being  divorced,  and  the  minor  heirs  being  devisees 
of  the  deceased  husband  and  father  (with  their  interest  subse- 
quent to  the  mortgage),  a  foreclosure  against  the  property 
which  had  been  the  homestead  was  allowed  —  there  being  no 
probate  homestead  designated  out  of  the  mortgaged  prop- 
erty.^ 

Even  after  judgment  for  alimony  has  been  given  the  wife, 
her  divorced  husband  may  hold  the  homestead  exempt  from 
her  judgment,  since  it  creates  no  lien  against  it.^  But  the 
husband  alone  is  not  a  family ;  the  divorce  may  result  in 
breaking  up  the  household,  and  there  may  be  circumstances 
in  which  a  court  may  have  the  homestead  attached  as  his 
property,  in  an  action  for  alimony.^ 

A  divorced  man  is  not  a  husband ;  a  divorced  woman  is  not 
a  wife :  on  the  death  of  the  man  who  was  her  husband  before 

1  Woods  V.  Davis,  34  la.  264 :  Byers  Rev.  L.  of  Vt.,  §  1894) ;  Whiteman  v. 
V.  Byers,  21  la.  268 ;  Wlutcomb  v.  Field,  53  Vt  554 ;  Wiggin  v.  Buzzeli, 
Whitcomb,  52  la.  715.  58  N.  H.  329  (on  Gen.  St.,  ch.  124). 

2  Heaton  v.  Sawyer,  60  Vt.  495  ;  *  Byers  v.  Byers,  21  la.  268 ;  Whit- 
Wiggin  V.  Buzzeli,  58  N.  H.  329.  comb  v.  Whitcomb,  52  la.  715. 

3Bunnel  v.  Stockton,  83  Cal.  319;        ^  Daniels  v.  Morris,  54  la.  369. 
Heaton  v.   Sawyer,   60  Vt  495   (on 


ACQUISITION    BY    A    WID0WP:R   OK    WIDOW.  iO 

the  divorce,  the  woman  divorced  from  him  does  not  become 
his  widow.^ 

§  7.  Acquisition  by  a  Widower  or  Widow. 

The  head  of  a  family  who  has  a  wife  but  no  chiklren;  or 
children  remaining,  after  having  lost  his  wife;  or  even  one 
child, —  may  acquire  the  homestead  right.  A  widower,  with 
children,  w^ho  may  not  have  acquired  while  his  wife  was  liv- 
jng,  may  do  so  after  her  death.  But  if  he  is  alone,  he  cannot 
now  declare  homestead,  or  avail  himself  of  such  means  of 
avoiding  creditors,  in  any  way.  With  no  wife  nor  children 
left  to  him,  and  no  family  of  any  sort  recognized  by  law^,  he 
cannot  take  the  original  steps  for  acquiring  homestead  as  the 
head  of  a  family.  Under  the  law^s  of  several  states,  he  could 
retain  his  homestead  right  without  a  family,  if  he  had  acquired 
it  with  a  family. 

A  widower,  whose  children  were  married  and  lived  apart 
from  him,  was  held  not  to  have  lost  his  exemption  right,^  but 
ordinarily  he  could  not  then  have  acquired  it. 

But  with  a  widowed  daughter  and  her  child  —  his  grand- 
child —  living  with  him,  and  dependent  upon  him,  a  widower, 
with  no  other  family,  was  judicially  recognized  as  a  house- 
keeper with  a  family,  and  therefore  entitled  to  a  homestead.^ 

A  widower  without  family,  if  a  housekeeper  owning  and 
occupying  his  dwelling-house  with  no  more  than  the  statutory 
maximum,  holds  it  exempt  under  a  statute  wiiich  provides 
that  "  the  homestead  of  a  housekeeper  or  head  of  a  familv 
.  .  .  shall  be  exempt."  ^  The  terms  householder  and  head 
of  a  family  have  been  held  not  synonymous,  so  that  a  house- 
keeper, without  wife  or  children  or  other  dependents,  w^as 
held  not  entitled  to  homestead,  under  a  statute  employing 
both  terms.^ 

All  that  has  been  said  of  the  widower  is  true  of  the  widow^ 
She  may  acquire  a  homestead  in  behalf  of  herself  and  her 
children,  by  complying  with  the  statutory  requirements  of 

1  Moore  v.  Hegeman,  27  Hun,  68 ;  » Sweeny  v.  Ross  (Ky.).  15  S.  W.  357. 
C;heno\vith  v.  Chenovvith,  14  Ind.  2 ;  *  Pierce  v.  Kusic,  56  Vt.  418. 
Whitsell  V.  Mills,  6  lucl.  229.  5  Calhoun   v.   Williams,   33  Gratt. 

2  Myers  v.  Ford,  22  Wis.  134.  18 ;  post,  §  8. 


7t)  FAMILY    HEADSHIP. 

ownership,  of  occupancy,  and  (wlierever  the  law  requires)  of 
dedication  and  recording,  provided  she  has  not  already  become 
the  beneficiary  of  the  technical  widow's  homestead  by  surviv- 
ing her  husband. 

He  may  have  been  poor,  without  the  necessary  property  to 
declare  upon ;  and  she  may  have  come  into  possession  of  means 
after  his  death.  In  such  case,  she  may  originally  acquire  the 
immunity  right  for  herself  and  hers,  just  as  a  man  may  do 
who  has  the  necessary  real  estate  by  some  title. 

It  more  commonly  happens  that  a  widow,  with  her  children, 
moves  into  a  homestead  state,  buys  a  home,  and  avails  herself 
of  the  homestead  law.  Under  such  circumstances,  her  posi- 
tion is  precisely  that  of  a  widower  who  does  so.  She  acquires 
as  the  head  of  her  family :  not  as  the  survivor  of  the  marital 
community.  She  holds  under  conditions  altogether  different 
from  those  which  attend  that  kind  of  homestead  which  is 
likened  to  dower,  which  does  not  depend  upon  occupancy  as 
a  general  rule,  which  is  deemed  an  estate  under  several  state 
statutes,  and  which  has  little  like  the  usual  homestead,  except 
the  name. 

A  widow,  as  the  head  of  a  famil}^  may  be  entitled  to  have 
a  homestead  accorded  to  her.^  And  it  was  held  that,  in  such 
case,  it  does  not  terminate  because  of  the  children's  reaching 
their  majority.-  But  a  homestead  of  minor  children,  in  their 
portion  of  the  estate,  is  terminated  by  their  majority.  Then 
their  respective  shares  are  accorded.^  The  widow  herself 
seems  to  have  been  regarded  in  the  case  next  to  the  last  cited, 
as  though  she  had  taken  homestead  from  her  deceased  hus- 
band's estate,  as  an  allowance,  like  dower.  When  a  widow, 
with  a  family  of  children,  comes  into  a  homestead  state,  set- 
tles with  them  in  a  dwelling,  in  behalf  of  herself  and  her  chil- 
dren, why  is  her  case  different  from  that  of  a  widower  with 
children  who  should  do  so?  And  if  he  would  cease  to  be 
protected  when  his  children  come  to  majority,  why  not  she? '' 

1  Fountain   v.  Hendley,  82  Ga,  616,  Ralr y  v.  Ross,  59  Ga.  862 ;  Faircloth 

623 ;  Deyton  v.  Bell,  81  Ga.  370 ;  Lee  v.   St.   Johns,  44  Ga.  603 ;  Hodo  v. 

V.  Hale,  77   Ga.  1 ;  Bridvvell  v.  Brid-  Johnson,  40  Ga.  439. 

well,  76  Ga.  627 ;  Groover  v.  Brown,  2  Groover  v.  Brown,  69  Ga.  60.   . 

69  Ga.  60;  Hodges  v.  Hightower,  68  3  Fountain  v.  Hendley,  82  Ga.  616. 

Ga.  281 ;  Gerding  v.  Beall,  63  Ga,  561 ;  *  Minor  children  could  have  home- 


ACQUISITION    BY    A   WIDOWER    OR    WIDOW.  77 

A  widow  may  have  a  homestead  carved  out  of  estate  of  her 
own  and  that  of  her  minor  child. ^  But  if  she  have  no  chil- 
dren, and  no  household,  she  cannot,  as  the  head  of  a  family, 
claim  homestead  out  of  her  deceased  husband's  projierty.'^ 
Nor  out  of  any  other  property,  even  her  own  by  her  own 
right  in  that  cajtacity,  it  may  be  sai^l.^ 

A  widow,  residing  with  her  children,  in  her  father's  house, 
is  the  head  of  her  own  family  and  may  becoine  the  declarant, 
when  she  is  the  owner,  manager  or  controller  of  the  farm  or 
property  declared  upon.'*  Leasehold  as  well  as  freehold  is  suf- 
ficient basis  for  her  to  build  upon,  as  in  case  of  a  male  declarant. 

There  is  no  reason  why  she  may  not  stand  in  loco  parentis 
to  adopted  children,  and  thus  be  the  head  of  a  family  capable 
of  acquiring  homestead;  especially  when  she  is  legaKy  bound 
for  their  support.  Family  headship  is  a  condition,  in  her  case, 
as  well  as  in  that  of  any  other,  when  originally  availing  her- 
self of  the  exemption  benefit —  not  merely  succeeding  to  the 
right  as  surviving  spouse.  In  some  states  such  headship  is 
required  in  the  latter  case.  The  widow's  homestead  from  the 
property  of  her  deceased  husband  was  denied  on  the  ground 
that  she  had  no  family  dependent  upon  her,^  though  this  was 
not  according  to  the  general  rule  relative  to  that  kind  of 
homestead.*^  Widows  are  accorded  homestead,  in  many  states 
much  as  they  are  accorded  dower;  and  the  having  of  children 
or  family  of  any  sort  does  not  signify.  Indeed,  the  term 
widoio's  homestead  does  not  come  within  the  definition  of 
homestead.  Occupancy,  family  headship  and  other  conditions 
are  not  necessary  to  the  widow's  homestead,  in  many  states ; 
that  is,  the  portion  assigned  her  as  her  homestead  from  her 
deceased  husband's  estate. 

A  step-mother  who  took  care  of  the  children   of  her  hus- 

stead  set  off  to  them  on  a  separate  homestead  for  the  minor  children  in 

apphcation  made  for  them  in  Georgia,  their   undivided   shares:   she    being 

Const,  of  1868.     Eoff  v.  Johnson,  40  their  guardian.     Her  husband   died 

Ga.  555  ;  Fountain  v.  Hendley,  82  Ga,  after  the  constitution  of  1868   was 

616.  adopted,  but  before  the  present  one. 

1  Akinv.  Geiger,  52  Ga.  407.  Fountain  v.  Hendley,  82  Ga.  616. 

2Kidd  V.  Lester,  46  Ga.  231.  *  Bachman  v.  Crawford,  3  Humph. 

3  In    Georgia  a  widow   took    her  213. 

homestead  from  her  undivided  share  ^Kidd  t.  Lester,  46  Ga.  231. 

of  her  husband's  estate,  and  also  a  ^  Estate  of  Walley,  11  Nev,  260. 


78  FAMir.Y    IIEADRIIIF. 

T3and  —  the  family  keeping  together  —  stood  in  parental  re- 
lation to  them.  Having  voluntarily  taken  upon  herself  the 
obligation,  she  was  under  such  moral  duty  as  to  entitle  her  to 
have  a  homestead  set  apart  for  the  benefit  of  herself  and  them. 
She  was  the  head  of  the  family,  within  contemplation  of  law. 
The  rule  may  sometimes  work  hardship  to  creditors,  but  in 
some  states  it  is  well  recognized.^ 

A  childless  widower  or  widow,  supporting  an  aged  parent 
or  other  dependent  having  moral  claims  upon  him  or  her  for 
support,  may  be  deemed  the  head  of  a  family,  and  entitled  to 
exemption  on  that  ground  ;2  but,  if  entirely  alone,  some  other 
statutory  foundation  must  sustain  the  claim  for  the  privilege 
if  it  can  be  sustained  at  all.  So  it  is  held  pointedly  that  a 
widower  without  children  living  with  him,  and  having  no 
family,  is  not  entitled  to  exemption  of  estate  as  the  head  of  a 
family.''  After  one's  exemption  right  has  ceased  with  the  loss 
of  his  wife  and  children,  he  may  have  a  second  family  and  be 
entitled  again  to  claim  homestead.* 

If,  while  he  is  still  the  head,  having  minor  children  living 
though  his  wife  be  dead,  he  marry  again,  his  second  wife  be- 
comes a  beneficiary  in  the  homestead.^  But  if  he  have  no 
children,  and  the  exemption  right  be  lost,  it  cannot  be  regained 
by  a  second  marriage.**  Then  he  may  again  apply  for  a  home- 
stead. But  it  has  been  held  that  he  cannot,  if  he  have  indi- 
gent adult  daughters:  the  old  homestead  being  held  still  good 
in  such  case." 

Though  the  debtor  may  not  have  been  the  head  of  a  family 
at  the  time  judgment  was  rendered  against  him,  it  is  held  that 
he  may  become  such  before  or  at  the  time  of  the  levy  under 
the  judgment  and  then  successfully  claim  homestead  free  from 
the  lien.  By  marriage,  between  the  time  of  the  judgment 
and  that  of  the  levy,  the  debtor  may  save  his  home.^    But  it 

iHolloway  v.  Holloway  (Ga.),  13  <  Shore  v.  Gastley,  75  Ga.  813. 

S.  E.  943;  Capek  v.  Kropik,  129  111.  SBarfield  v.  Barfield,  72  Ga.  668; 

509 ;  Riley  v.   Smith  (Ky.),  5  S.  W.  Gresham   v.   Johnson,   70    Ga.    631 ; 

869 ;  Moyer  v.  Drumniond  (S.  C),  10  Hall  v.  Mathews,  68  Ga.  490 ;  Bank 

S.   E.   952 ;    Chamberlain  v.   Brown  v.  Shelton,  87  Tenn.  393. 

(S.  C.),  11  S.  E.  439;  Lathrop  v.  As-  6  Wright  v.  James.  64  Ga.  533. 

Bociation,  45  Ga.  483,  distinguished,  ^  Tornince  v.  Boyd,  63  Ga.  22. 

2  Parsons  v.  Livingston,  11  la.  104.  eChafee  v.  Rainej',  21  S.  C.  11  {dis- 

3 Walker  V.  Thomason,  77  Ga.  682.  tinguished  from  Jones  v.  Miller,  17 


UNMARRIED    BENEFICIARY.  79 

has  also  been  decided  that  a  mortgagor  cannot  remove  or 
affect  the  lien  he  has  put  upon  his  property  by  getting  mar- 
ried and  clothing  the  lien-bearing  premises  with  homestead 
inviolability.^ 

Debtors  are  usually  held  more  stringently  to  their  conven- 
tional obligations  than  to  others.^ 

§  8.  Unmarried  Beneficiary. 

Family  headship  is  not  limited  to  married  persons.  A 
maiden  aunt,  protecting  and  providing  for  her  dependent 
nieces,  has  been  recognized  as  the  head  of  a  family  entitled  to 
homestead  exemption.^  So  also  a  single  woman  who  sup- 
ported an  invalid  sister  living  with  her.*  She  may  need  it  as 
much  as  her  married  sister,  but  her  recognition  as  one  entitled 
to  it,  as  above  mentioned,  is  exceptionaL  She  would  not 
generally  be  accorded  the  right;  only  wdiere  the  statutory 
provision  plainly  expresses  or  implies  her  inclusion  among 
beneficiaries,  will  she  be  allowed  to  claim  homestead  as  the 
head  of  a  family.  Why  not?  Because  the  homestead  policy 
is  not  to  bestow  charity  but  to  conserve  homes ;  mostly,  those 
of  parents  and  their  children. 

An  unmarried,  childless  woman  does  not  answer  the  usual 
statutory  requirement  that  one  must  be  a  householder  at  the 
head  of  a  family  to  become  a  homestead  beneficiary.'^  In  some 
of  the  states,  the  family  relation  may  exist  between  her  and 
those  whom  she  has  assumed  to  support,  even  though  there 
be  no  moral  or  legal  obligation  on  her  part  to  do  so ;  but  the 
general  rule  is  to  the  contrary.  And  the  general  rule  applies, 
of  course,  to  a  person  of  eitlier  sex. 

S.  C.  380,  and  Pender  v.  Lancaster,  14  tion,   except  as  he  voluntarily  sur- 

S.  C.  25).  renders  liis  own.     Gilmore  v.  Bright, 

1  Wilson  V.  Scott,  29  O.  St.  636.  101  U.  S.  382 ;  Fortune  v.  Watkins,  94 

2  A  husband,   in   North    Carolina,  N.  C.  304 ;  Reeves  v.  Haynes,  88  N.  C. 
cannot  have  his    land  taken    from  310 ;  Murphy  v.  McNeil,  82  N.  C.  221 ; 
him  by  sale  for  debt  without  his  con-  Bruce  v.  Strickland,  81   N.  C.   267 ; 
sent,  if  it  was   acquired  before  the  Sutton  v.  Askew,  66  N.  C.  172. 
constitution  of  1868  was  adopted,  if  » Arnold  v.  Waltz,  53  la.  706. 

he  was  married  before  that  date.   He  ^  Chamberlain  v.  Brown,  33  S.  C. 

may  have  homestead  allotted  out  of  597. 

it  and  leave  the  rest  of  it  exposed.  *  Wood  worth  v.  Comstock,  10  Allen, 

His  rights  and  those  of  his  creditors  425. 

are  not  impaired  by  that  constitu- 


80  FAMILY     IlKADSIiri'. 

An  unmarried  man  may  have  a  family  living  with  him,  and 
he  may  be  its  head.'  He  may  be  the  guardian  of  minors  liv- 
ing with  him,  and  be  entitled  to  exemption;  in  that  capacity 
he  has  been  recognized  as  the  head  of  a  family.-  Indeed,  he 
may  bo  as  important  a  factor  of  state  citizenship  as  any  mar- 
ried man  could  be.  Ilis  wards  need  rearing,  need  a  home, 
need  a  fatherly  director :  so  his  homestead  protection  comes 
within  the  policy  of  the  legislator. 

An  unmarried  son  has  been  recognized  as  the  head  of  a  family 
when  his  mother  lived  with  him  and  was  supported  by  him. 
In  his  case  it  was  declared  to  be  not  essential  to  family  head- 
ship that  the  head  be  legally  bound  to  support  the  members  — 
moral  obligation  being  sufficient.^ 

Distinction  has  been  made  between  the  head  of  a  family 
and  the  head  of  a  household.  The  former  has  the  relation  of 
status,  while  the  latter  that  of  contract,  it  is  said.  The  former 
may  be  illustrated  by  a  father  with  reference  to  his  children ; 
the  latter  by  a  master  with  reference  to  employees  living  in 
his  dwelling.* 

Householder  has  been  held  synonymous  with  head  of  a  fam- 
ily, in  construing  a  constitutional  provision  granting  the  home- 
stead privilege  to  either:  so  an  unmarried  man,  keeping 
house,  with  no  children  or  dependents  living  with  him,  was 
denied  the  privilege.'^  He  was  a  householder,  but  not  such  a 
one  as  the  statute  contemplated,  according  to  the  construction. 

An  unmarried  man,  with  a  family  constituted  in  derogation 
of  law,  has  been  held  entitled  to  hold  his  homestead  free  from 
liability  to  forced  sale  by  creditors.^  So,  an  unmarried  woman 
who  supported  her  infant  child.'' 

1  Moore  v.   Parker,  13  S.  C.  487;  5  Calhoun  v.  Williams,  32  Gratt.  18. 

Greenwood  v.  Maddox,  27  Ark.  658 ;  Servants  and  employees  do  not  com- 

Wade  V.  Jones,  20  Mo.  75 ;  Parsons  pose  a  family,     Garaty  v.  Dii  Bose,  5 

V.  Livingston,  11  la,  104.  S.  C.  493;   Callioun  v,  McLinden,  42 

'-  Rouutree  v.  Dennard,  59  Ga.  629.  Ga.  405. 

3  State  V.  Kane,  42  III.  App.  42 ;  «  Gay  v.  Halton,  75  Tex.  203  ;  Lane 
Wade  V.  Jones,  20  Mo.  75;  Con-  v.  Philips.  69  Tex.  240;  Ex  parte. 
naughton  v.  Sands,  32  Wis.  391 ;  Par-  Brien,  2  Tenn.  Ch.  33. 

sons  V.  Livingston,  11  la.  226.  "Cantrell  v.  Conner,  51  How.  (N.  Y.) 

4  Murdock  v.  Dalby,  13  -Mo.  App.  47.     45 ;  Ellis  v.  White,  47  CaL  7a 
Compare  State  v.  Finn,  8  Mo.  App. 

264 


UNMARRIED    BENEFICIARY.  81 

The  word  family,  as  used  in  the  homestead  laws,  ought  to 
be  understood  to  mean  a  legally  constituted  household.  It 
seems  improbable  that  courts  generally  will  recognize  a  man 
as  the  head  of  a  family  who  lives  in  immoral  relations  with 
its  members,  and  who  is  not  bound  by  the  ties  of  wedlock. 
When  the  term  family  occurs  it  usually  means  a  legally  con- 
stituted family.  Always  in  homestead  statutes  it  means  this. 
What  sort  of  state  policy  would  be  promoted  by  the  conser- 
vation of  illegally  constituted  households? 

Accordingly  it  is  held  that  an  illegal  relation  between  a  man 
and  a  woman  will  not  render  them  a  family,  though  they  to- 
gether occupy  a  dwelling;  but  that  the  relation  of  marriage 
makes  the  two  a  family.^ 

Were  no  distinction  to  be  made  between  the  good  homes 
which  constitute,  in  the  aggregate,  the  state  itself,  on  the  one 
hand  —  and  the  bad  ones  where  law  is  set  at  defiance  and  the 
sacred  names  of  marriage,  family  and  parental  relation  insulted, 
the  effect  of  homestead  laws  would  not  always  be  salutary. 

An  unmarried  head  of  a  family  is  not  subject  to  all  the  re- 
straints upon  the  alienation  of  his  homestead  that  a  married 
beneficiary  would  be.  If  he  wishes  to  mortgage  his  home- 
stead, there  is  no  wife  to  join  in  the  deed,  and  he  may  legally 
act  alone.2  l^or  is  the  exemption  accorded  him  so  endurable, 
on  the  other  hand,  as  that  of  a  married  man,  who  can  trans- 
mit his  home  to  his  widow  and  children  with  the  immunity 
stamp  still  upon  it.  The  bachelor's  death  lets  in  the  cred- 
itors. 

A  bachelor  may  donate  his  homestead,  despite  his  creditors, 
under  the  law  that  exempts  such  property  for  the  benefit  of 
every  "  resident "  who  may  claim  exemption.  But  they  can 
seize  what  he  leaves  at  his  death.  Leaving  no  wife  nor  chil- 
dren, he  leaves  his  property  free  from  exemption,  and  his 
creditors  free  to  get  their  rights.  "  No  one  ever  supposed 
that,  on  the  death  of  a  landholder,  having  a  homestead,  leav- 
ing neither  minor  child  nor  widow,  the  descent  of  the  home- 
stead is  governed  by  rules  different  from  those  which  govern 

iRockv.  Haas,  110  m.  528;  Ryhi-  erland,    14    Barb,    456;    Stanton    v. 

ner  v.  Frank,  105  III.  326 ;  Aaron  v.  Hitchcock,  64  Mich,  316. 

The  State,  37  Ala.  106 ;  Gunn  v.  Gude-  ^  Smith  v.  Von  Hutton,  75  Tex.  625 ; 

hus,  15  B.  Mon.  447 ;  Griffin  v.  Suth-  Lacy  v.  RoUins,  74  Tex.  566. 
6 


82  FAMILY    HEADSHIP. 

in  the  descent  of  other  landed  estate.  All  go  to  the  devisee, 
or  heir,  subject  to  a  prime  and  paramount  liability  for  the 
debts  of  the  ancestor."  ^ 

Where  the  statute  did  not  require  family  headship,  but 
secured  homestead  exemption  to  the  owner  when  the  pre- 
scribed quantity  was  "  owned  and  occupied  b}"^  any  resident 
of  the  state,"  the  court  said  of  it :  "  It  does  not  restrict  th,e 
privilege  of  the  homestead  exemption  to  the  case  where  the 
'  owner '  is  a  '  married  man.'  The  statute  speaks  of  the  '  owner,' 
'resident,'  'householder,'  as  descriptive  of  the  persons  who 
are  entitled  to  the  benefit  of  the  exemption.  A  man  may  be 
an  '  owner,'  '  resident '  and  '  householder  '  without  being  mar- 
ried. A  single  man  may  own  property,  reside  upon  it,  and 
have  a  family  occupying  the  house  with  him.  The  next  sec- 
tion shows  most  clearly  that  the  legislature  did  not  intend  to 
confine  the  privileges  of  the  homestead  exemption  to  married 
men.  For  it  declares  that  a  mortgage  or  other  alienation  of 
the  homestead  by  the  owner  thereof,  if  a  married  7nan^  shall 
not  be  valid  without  the  signature  of  the  wife.  This  clearly 
and  obviously  recognizes  the  case  where  the  owner  of  a  home- 
stead is  not  a  married  man.  In  that  case,  the  disability  does 
not  apply. 

"  In  this  case,  the  plaintiff  was  a  widower;  his  children  were 
all  married  and  away  from  home.  But  he  was  actually  occu- 
pying the  premises  in  dispute.  It  appears  that  he  had  rented 
them,  but  boarded  with  his  tenant,  and  had  his  bed  in  the 
house,  and  slept  there."  So  the  court  accorded  him  home- 
stead.2 

The  statute  was  exceptional,  and  the  decision  is  therefore 
not  of  general  authority.  Is  it  in  accord  with  prior  decisions 
of  the  same  court? ' 

§  9.  Lack  or  Loss  of  Family. 
Family  protection  and  conservation,  for  the  good  of  the 
state,  being  the  general  policy  of  the  homestead  legislation, 
isolated  persons  and  groups  of  persons  not  bound  by  the  house- 

1  Fellows  V.  Lewis,  65  Ala.  343,  3  gee  Bunker  v.  Locke,  15  Wis.  635 ; 
356-7.  Platto  v.  Cady,  12  Wis.  465;  Phelps 

2  Myers  v.  Ford,  23  Wis.  134,  citing  v.  Rooney,  9  Wis.  80. 
R.  S.  of  Wis.,  ch.  134,  §  23. 


LACK    OR    LOSS    OF    FAMILY.  83 

hold  tie  are  excluded  from  the  benefits.  While  all  the  mem- 
bers of  a  legally  constituted  family  are  beneficiaries,  the  law 
looks  to  their  representative  as  the  one  to  whom  the  privilege 
of  accepting  the  conditions  is  accorded.  And,  since  family 
headship  is  an  indispensable  condition  in  most  of  the  states, 
the  owner  and  occupant  of  a  dwelling  cannot  have  it  set  apart 
as  inviolable  from  the  date  of  dedication,  or  claim  exemption 
from  execution  after  judgment,  when  that  condition  has  not 
been  observed.  A  person  without  family  cannot  become  a 
beneficiary  under  the  prevailing  system  of  homestead.^ 

If  more  than  one  family  reside  together,  each  retains  the 
homestead  character,  and  the  head  of  one  cannot  be  the  head 
of  all  as  declarant  of  a  homestead  for  all.  It  would  be  absurd 
for  several  indebted  householders  to  be  protected  from  their 
respective  creditors  by  virtue  of  the  homestead  declaration  of 
one  of  them. 

Some  of  the  statutes  expressly  provide  that  dependent  rela- 
tives within  a  specified  degree  may  be  considered  as  members 
of  the  family  of  one  who  supports  them,  though  he  have  no 
wife  nor  child.  An  adult  sister,  aged  grand-parents,  orphan 
grand-children  and  others  may  thus  become  beneficiaries  of 
of  homestead  under  the  headship  of  their  supporter  who 
would  not  be  in  lack  of  family.  There  must  be  a  family  of 
some  sort,  legally  recognized  as  such,  under  the  prevalent 
system.  It  is  superfluous  to  say  that  one  having  no  family 
cannot  have  the  headship  of  one.^  Thus  a  widower,  with  no 
household  but  his  housekeeper,  is  not  the  head  of  a  family.' 

When  the  family,  constituting  all  the  beneficiaries  required 
by  the  homestead  provisions,  has  ceased  to  exist,  the  late 
homestead  has  been  held  open  to  creditors.* 

1  Ellis  V.  Davis  (Ky.),  14  S.  W.  74 ;  2  Abercrombie  v.  Alderson,  9  Ala, 

Woodworth  v.  Comstock,  10  Allen,  981 ;  Lynch  v.  Pace,  40  Ga.  173 ;  Cal- 

425 ;     Lynch  v.   Pace,  40    Ga.    173 ;  houn  v.  McLendon,  42  Ga.  406 ;  Gunn 

Keiffer  v.  Barney,  31  Ala.  196 ;  Aber-  v.  Gudehus,  15  B.  Mon.  452 ;  Bovvne 

crombie    v.    Alderson,   9  Ala.    981 ;  v.   Witt,    19  Wend.   475 ;   Wilson  v. 

Whalen     v.    Cadman,    11    la.    226;  Cochran,   31    Tex.    677;    Barnes  v. 

Wilson  V.  Cochran,  31  Tex.  677.    The  Rogers,  23  111.   350 ;  Woodworth  v. 

same  rule  was  applied  to  chattel  ex-  Comstock,  10  Allen,  425 ;  Whalen  v. 

emption.     Bowne  v.  Witt,  19  Wend.  Cadman,  11  la.  226. 

475 ;  Gunn  v.  Gudehus,  15  B.  Mon.  3  Ellis  v.  Davis  (Ky.),  14  S.  W.  74. 

452.  *  Givens   v.  Hudson.  64  Tex.  471 ; 


84  FAMILY    HEADSHIP. 

Homestead  privileges  and  immunities  cannot  be  acquired 
by  one  who  has  no  family,  under  a  statute  according  them  to 
the  head  of  a  family ;  but  when  once  acquired,  they  may  be 
continued  after  the  loss  of  all  the  members  of  the  household, 
by  the  liberal  provisions  of  some  of  the  states.  Such  provis- 
ions arc  found,  not  in  the  sections  conferring  the  benefit  orig- 
inally, but  in  those  of  the  states  relative  to  survivorship,  the 
descent  of  homestead  estates,  the  disposition  of  the  exempt 
property  after  divorce,  and  the  like ;  or,  the  continuance  of 
the  benefit  in  a  single  person  may  be  found  in  the  construc- 
tion given  by  the  courts  to  the  statutory  enactments  on  those 
subjects. 

If  there  is  no  provision,  either  expressed  or  implied,  that  a 
homestead  once  legally  dedicated  shall  be  lost  to  the  owner 
by  the  loss  of  his  family,  the  courts  do  not  invariably  hold  it 
thus  lost. 

It  can  never  be  proper  to  speak  of  one  as  the  head  of  a 
family  who  has  no  member  of  it  left  to  him.  Manifestly  it  is 
a  contradiction  of-  terms  to  say  that  one  person,  living  habit- 
ually alone,  is  the  head  of  a  family.  So,  when  we  find  the  courts 
saying  that  he  is,  we  should  take  their  meaning  rather  than 
their  literal  statement ;  and  we  shall  find  that  the  holding  is 
that  one  who  acquired  homestead  while  he  was  a  veritable 
head  of  a  family  does  not  necessarily  lose  it  when  bereft  of 
all  its  members. 

For  instance,  when  it  is  said  that  the  childless  widow  of  a 
householder,^  or  a  childless  widower,^  or  a  divorced  husband 
without  the  care  of  his  children,^  is  each  the  head  of  a  family, 
entitled  to  exemption,  we  must  take  the  meanmg  rather  than 
the  literal  declaration. 

A  husband,  divorced  at  the  suit  of  his  wife,  with  no  children 
residing  habitually  with  him,  was  still  considered  as  the  head 
of  a  family  entitled  to  homestead.     Whether  he  or  she  had 

Burns  v.  Jones,  37  Tex.  50 ;  Petty  v.  right.     Davis  v.  McCartney,  64  Tex. 

Barrett,  37  Tex.  84 ;  Duke  v.  Reed,  64  584. 

Tex.  705 ;  Inge  v.  Cain,  65  Tex.  75 ;  i  Bradley  v.  Eodelsperger,  3  S.  C. 

Stewart  v.  Mackey,  16  Tex.  56 ;  Lee  226 ;  Leake  v.  King,  85  Mo.  413 ;  Floyd 

V.  Kingsbury,  13  Tex.  68.  Community  v.  Mosier,  1  la  512. 

property  is  open  to  creditors  when  all  ^^  Parsons  v.  Livingston,  Ilia.  104. 

holding  homestead  right  in  it  have  3  Woods  v.  Davis,  34  la.  264. 

died  or  become  of  age  or   lost  the 


LACK    OR    LOSS    OF    FAMILY.  85 

been  at  fault  was  treated  as  immaterial,  and  the  homestead 
right  was  thought  to  be  the  same  as  it  would  have  been,  had 
the  marriage  relation  been  dissolved  by  death. ^  And  when  it 
has  been  dissolved  by  death,  the  surviving  husband  has  been 
deemed  the  head  of  a  family,  though  living  alone.- 

To  the  same  effect,  it  has  been  held  that  the  status  of  head 
of  a  family,  such  as  that  of  a  husband  and  father,  is  not  lost  by 
the  loss  of  all  the  members.^ 

The  theory,  that  homestead  is  not  meant  for  the  family  but 
"  for  the  householder  and  his  family,"  has  been  understood  to 
recognize  him  as  a  sole  beneficiary  when  he  has  ceased  to  have 
a  family  —  just  as  though  the  benefit  were  expressly  granted 
to  him  independently  of  the  family  relation.  This  theory, 
though  contrary  to  the  general  policy  of  homestead  legisla- 
tion, which  is  to  conserve  families  for  the  good  of  the  state 
(a  purpose  which  cannot  be  repeated  too  often),  finds  color  of 
warrant  in  a  state  constitution  which  ordains  that  the  general 
assembly  shall  prescribe  how  the  householding  head  of  a  fam- 
ily shall  set  apart  a  homestead  "  for  himself  and  family."  *  This 
has  been  construed  to  mean  that  the  householder,  after  the 
loss  of  his  family,  has  yet  the  right  to  retain  the  homestead.' 

While  the  family  continues,  the  homestead  is  not  lost  by  a 
change  of  state  constitution.^  That  is,  if  homestead  is  author- 
ized, or  not  inhibited,  by  the  new  organic  law,  and  the  statutes 
are  continued  in  force,  the  old  homestead  remains  unaffected. 
All  homestead  laws  are  repealable,  however,  as  the  privilege 
granted  is  not  a  vested  right ;  that  is,  there  is  no  contract  be- 
tween the  beneficiary  and  the  state  arising  upon  his  compli- 
ance with  the  required  conditions. 

1  Zapp  V.  Strolimeyer,  75  Tex.  638.    264 ;  Wilkinson  v.  Merrill,  87  Va.  513 ; 

2  Taylor  v.  Boulware,  17  Tex.  77;  Blackwell  v.  Broughton,  56  Ga.  393. 
Kessler  v.  Draub,  53  Tex.  579 ;  Blum        4  Va.  Const,  art.  XI,  §  5. 

V.  Gaines,  57  Tex.  119.  5  Wilkinson  v.  Merrill,  87  Va.  513, 

3  Rollings  V.  Evans,  33  S.  C.  316 ;  overruling  Calhoun  v.  Williams,  33 
Kessler  v.  Draub,  52  Tex.  575 ;  Taylor    Gratt.  18. 

V.  Boulware,  17  Tex.  74 ;  Silloway  v.  <*  First  N.  Bank  v.  Massengill,  80 
Brown,  13  Allen,  34;  Doyle  v.  Co-  Ga.  333 ;  Van  Horn  v.  McNeill,  79  Ga. 
burn,  6  Allen,  71 ;  Parsons  v.  Living-  121 ;  Stephenson  v.  Eberhart,  79  Ga. 
ston,  11  la.  104;  Stewart  v.  Brand,  117,  distinguishing  Skinner  v.  Moye, 
23  la.  477 ;  Woods  v.  Davis,  34  la.    69  Ga,  476,  and  City  Bank  v.  Smisson, 

73  Ga.  423. 


86  FAMILY    HEADSHIP. 

A  widower,  who  had  a  family  when  his  homestead  right 
was  created,  was  held  to  have  that  right  unimpaired  by  tho 
loss  of  his  wife  and  children  by  death  and  marriages,  while  ho 
continues  to  occupy  the  premises.  This,  though  previously 
held  elsewhere  as  has  been  shown,  was  recently  decided  for 
the  first  time  in  a  state  whose  statutes  provide  that  every 
honafide  housekeeper  with  a  fmnily  resident  in  the  common- 
wealth shall  hold  land,  etc.,  exempt  from  execution  to  the 
amount  of  one  thousand  dollars,  and  that  the  exemption  shall 
continue  after  the  death  of  the  debtor  for  the  benefit  of  his 
widow  and  children,  or  for  the  use  of  the  surviving  husband 
and  children,  when  the  deceased  wife  was  the  owner.^  The 
court  said :  "  Considering  the  entire  act,  and  the  spirit  which 
led  to  its  enactment,  it  seems  to  us  its  only  reasonable  con- 
struction is  that,  while  the  having  of  a  family  is  necessary  to 
the  creation  of  the  homestead  right,  it  is  not  necessary  to  its 
continuance."  And  previously :  "  Can  it  well  be  supposed  that 
the  legislature  intended  that,  in  the  event  of  the  death  of  the 
wife,  owning  the  homestead,  the  benefit  of  it  should  continue 
to  the  husband  during  his  occupancy,  although  he  has  no 
family,  and  yet  that  if  he  be  the  owner  of  it,  and  his  wife  and 
children  die,  or  the  latter  marry  and  leave  him,  his  right  to 
the  exemption  ceases?"  Then,  calling  attention  to  the  sur- 
vivor's right  of  homestead,  the  court  inquires,  "  Why  should 
not  the  original  owner  have  a  right  equal  to  the  survivor,  and 
why  should  not  the  law  favor  the  latter  equally  at  least  with 
the  former?  Is  the  party  to  be  worsted  because  he  owns  the 
property?  Can  any  reason  be  given  why  the  same  right 
should  not  exist  as  to  his  own  property  as  is  given  to  him  in 
his  wife's  property  after  her  death?  Ought  not  a  claim  to  a 
homestead  in  his  own  property,  as  against  his  own  creditors, 
to  be  as  much  regarded  as  his  claim  to  one  in  her  property 
after  her  death?  The  construction  here  contended  for  by  the 
creditor  should  not  be  given  to  a  statute  which  was  enacted 
from  a  spirit  of  liberality  toward  the  debtor."  ^ 

It  will  be  noticed  that  this  construction  was  based  on  the 
prevalent  idea  that  homestead  laws  are  to  favor  the  debtor  for 
his  own  sake  —  not  to  conserve  family  homes  for  the  welfare 

1  Gen.  Stat.  Ky.,  ch.  38,  art  13,  g§  9,  2  stults  v.  Sale  (Ky.),  17  N.  W.  148. 
13,  15. 


LACK    OR    LOSS    OF    FAMILY.  87 

of  the  state.  The  better  idea  seems  to  be  that  expressed  by 
the  court  in  another  part  of  the  opinion :  "  It  is  no  doubt  also 
true  that  the  jpriTnary  object  of  the  statute  was  the  protection  of 
families  froin  want  and  the  giving  of  them  a  shelter.''^  This 
must  be  for  their  conservation  for  the  good  of  the  state,  else 
there  is  an  invidious  distinction  in  a  charity  against  those 
who  have  no  families.  This  matter  was  noticed  when  consid- 
ering the  policy  of  the  homestead  laws,  in  the  first  chapter 
herein.  The  decision  follows  older  ones  in  other  states,  and 
there  is  no  purpose  to  controvert  it  in  this  place.' 

It  is  a  very  different  case  when  a  husband  has  been  divorced 
and  he  yet  has  minor  children  living,  and  yet  occupies  his 
homestead  to  which  they  may  return  though  now  living  with 
their  mother  who  has  been  granted  the  custody  of  them.  He 
still  has  a  family  and  he  is  the  head  of  it,  though  literally  liv- 
ing alone.  The  policy  of  the  state  favors  family  life  and  its 
perpetuity:  so  it  comports  with  the  genius  of  homestead  leg- 
islation to  protect  the  home  that  is  awaiting  its  inmates  under 
the  present  care  of  the  household  head.  The  judicial  award- 
ing of  the  minor  children  to  the  wife  and  mother,  on  the 
granting  of  the  divorce,  is  not  necessarily  a  breaking  up  of  the 
family  forever.  It  is  likely  to  prove  such,  but  the  decree  does 
not,  in  letter  or  spirit,  inhibit  the  return  of  the  children  to  the 
hearth-stone  of  the  father,  with  the  mother's  consent.  The 
divorce  does  not  interfere  with  the  descent  of  the  father's  home- 
stead to  his  minor  children,  in  case  of  his  death,  when  he  has 
occupied  the  premises  and  preserved  its  exempt  character  till 
that  event.  The  divorced  wife,  as  guardian  of  the  minors, 
may  petition  to  have  the  father's  homestead  accorded  them 
upon  his  death.  And  this  is  so,  though  the  wife  may  have 
had  life-estate  in  land  assigned  her  at  the  time  of  the  divorce 
as  well  as  the  custody  of  the  children. 

The  foregoing  paragraph  will  not  be  received  as  law  every- 
where, but  it  briefly  presents  the  points  of  the  case  now  cited.' 

1  The  court  cited  the  case  of  Sillo-  Brooks  v.  Collins,  11  Bush,  622;  Ellis 

way  V.  Brown,  12  Allen,  30 ;  Kimbrel  v.  Davis  (Ky.),  14  S.  W.  74. 

V.  Willis,  97  111.  494 ;  Kessler  v.  Draub,  2  Hall  v.  Fields  (Tex.),  17  S.  W.  82. 

52  Tex.  575,  and  others,  on  this  ijoint ;  In  this  case  the  divorced  mother  of 

and  relative  to  the  cessation  of  family  minors  prayed,  as  their  guardian,  to 

headship,  with  respect  to  homestead,  have  the  deceased  father's  homestead 


S8 


FAMILY    HEADSHIP. 


§  10.  Claiming  After  Loss  of  Family, 
One  who  never  claimed  homestead  while  he  had  a  family, 
nor  ever  had  homestead  right  vested  in  him  by  operation  of  law 
as  the  head  of  a  family,  is  unable  to  comply  with  all  the  con- 


set  apart  for  their  use.  After  a  long 
statement  of  the  facts,  the  court  said  : 

"Mrs.  Hall,  by  reason  of  the  di- 
vorce from  her  husband,  could  not 
assert  and  did  not  assert  any  claim 
for  herself  to  the  homestead  of  her 
late  husband,  E.  C.  Hall.  Duke  v, 
Eeed,  64  Tex.  713 ;  Trawick  v.  Har- 
ris, 8  Tex.  312 ;  Earle  v,  Earle,  9  Tex. 
630 ;  Sears  v.  Sears,  45  Tex.  557.  She 
was  the  duly-constituted  guardian  of 
the  minors,  R.  E.  Lee  Hall  and  Elma 
Hall,  the  children  of  herself  and  her 
said  husband,  and  in  this  capacity 
made  the  application  to  the  county 
court  in  the  estate  of  said  E.  C.  Hall, 
administration  of  which  was  therein 
pending,  to  have  the  homestead 
which  he  was  occupying  at  his  death 
set  apart  for  the  use  and  occupation 
of  said  minors.  This  proceeding  was 
proper.  The  raiuors  could  have  as- 
serted no  right  to  the  homestead  ex- 
cept through  a  guardian. 

"  The  land  was  the  homestead  of 
E.  C.  Hall,  not  only  by  use  and  occu- 
pation thereof  as  such,  but  he  was 
protected  therein  by  exemption  from 
forced  sale.  A  divorced  husband  liv- 
ing upon  land  occupied  and  used  by 
him  as  a  homestead  at  the  time  of 
the  divorce,  and  set  apart  to  him  in 
the  division  of  the  property  between 
himself  and  his  wife  when  the  mar- 
riage was  dissolved,  may  claim  its 
exemption  from  forced  sale  as  the 
head  of  a  family,  although  the  chil- 
dren do  not  reside  with  him,  and  no 
matter  whose  fault  occasioned  the 


divorce.  Zapp  v.  Strohmeyer,  75 
Tex.  638;  13  S.  W.  Rep.  9.  Cases 
have  arisen  for  determination  as  to 
who  are  constituents  of  a  family 
when  persons  are  found  living  to- 
gether not  bound  by  near  ties  of 
relationship,  and  rules  have  been 
prescribed  for  determining  whether 
or  not  a  particular  aggregation  of 
individuals  constitutes  a  family.  In 
Roco  v.  Green,  50  Tex.  488,  the  gen- 
eral rules  deduced  from  the  author- 
ities are  enunciated.  From  the  re- 
lationship of  minor  children  to  their 
father  we  can  have  no  doubt,  under 
our  present  constitution  and  laws, 
that  it  is  not  necessary  that  the  chil- 
dren should  reside  with  the  father  at 
the  time  of  his  death  to  entitle  them 
to  a  right  in  his  homestead.  It  is 
not  so  required  by  the  constitu- 
tion. Const.,  art.  16,  §  52.1  By  the 
Revised  Statutes  (art.  1993),  the  ex- 
empt property  must  be  set  apart '  for 
tiie  use  and  benefit  of  the  widow 
and  minor  children,  and  unmarried 
daughters  remaining  with  the  fam- 
ily of  the  deceased.'  Adult  children, 
including  unman-ied  daughters  who 
do  not  remain  with  the  family  of  the 
deceased,  do  not  share  in  the  exemp- 
tions; but  the  widow  and  minor 
children  do,  although  they  may  not 
be -with  the  deceased.  That  the  chil- 
dren were  awarded  by  the  court,  in 
the  divorce  proceeding,  to  the  cus- 
tody of  their  mother,  can  and  ought 
to  make  no  difference.  Their  father 
was  still  legally  bound  for  their  sup. 


1  Const.  Tex.,  art.  16,  §  52 :  "On  the  death  of  the  husband  or  wife,  or  both, 
the  homestead  shall  descend  and  vest  ...  as  other  real  property  of  the 
deceased,  .  .  .  but  it  shall  not  be  partitioned  among  the  heirs  .  .  . 
so  long  as  the  guardian  of  the  minor  cliildren  .  .  .  may  be  permitted 
under  order  of    .    .    .    court    ...     to  use  and  occupy  the  same." 


CLAIMING    AFTER    LOSS    OF    FAMILY. 


89 


ditions  to  acquisition  after  he  has  ceased  to  have  a  family. 

The  conditions  of  property  ownership  and  occupancy  he  may 

still  be  able  to  satisfy,  but  family  headship  would  be  wanting. 

There  has  been  a  good  deal  of  doubt  and  misunderstand- 


port,  and  it  would  be  a  double  mis- 
fortune to  them  to  be  deprived,  on 
account  of  the  unhappy  termination 
of  the  marriage  of  their  father  and 
mother,  both  of  their  right  to  the  so- 
ciety and  protection  of  the  father. 
The  home  of  the  mother  may  be  of 
little  value,  and  poverty  may  compel 
her  to  sell  or  incumber  it ;  then  where 
could  the  children  go  more  properly 
for  relief  tlian  to  their  father's  home? 
It  has  been  held  not  necessary  to  the 
existence  of  the  homestead  right 
that  the  family  should  remain  on 
the  land.  To  use  and  occupy  the 
homestead  within  the  meaning  of 
the  constitution  does  not  require  a 
residence  upon  it.  Foreman  v.  Me- 
roney,  62  Tex.  723. 

"There  was  no  provision  in  this 
case,  in  the  division  of  the  property 
between  Hall  and  his  wife,  for  the 
support  and  maintenance  of  the  chil- 
dren ;  on  the  contrary,  the  division 
was  agreed  on  and  expressly  made 
without  reference  to  it,  for  their  cus- 
tody was  left  to  the  decision  of  the 
court.  It  was  given  to  the  mother, 
no  doubt,  because  of  their  tender  age, 
which  required  the  care  that  only  a 
mother  can  give.  They  had  no  home- 
stead rights  as  such  in  the  home  of 
either  their  father  or  their  mother. 
At  any  time  before  his  death  the 
father  may  have  abandoned  or  sold 
his  homestead  without  affecting  the 
legal  rights  of  his  minor  children, 
and  so  the  mother  could  sell  her  life- 
interest  in  the  eighty  acres  set  apart 
to  her  and  the  homestead  which  she 
had  bought  in  Sherman.  It  cannot 
be  said  that,  living  with  their  mother 
on  a  homestead  belonging  to  her,  the 
children  have  a  homestead,  and  con- 


sequently cannot  look  to  their  father's 
estate  for  one,  when  at  any  time  the 
mother  may  sell.  Had  she  died 
prior  to  her  husband,  and  her  home 
had  been  set  apart  to  the  children' 
then  it  might  be  urged  with  pro- 
priety that  they  could  not  claim  two 
homesteads.  But,  their  father  being 
dead,  they  will  not  be  required  to  de- 
pend on  the  contingency  of  home- 
stead rights  in  their  mother's  estate. 
They  have  no  home;  they  are  the 
minor  children  of  a  father,  the  head 
of  a  family,  who  has  died  leaving  a 
homestead.  The  constitution  is  im- 
perative in  its  command  that  it  shall 
not  be  taken  from  them  so  long  as 
their  guardian  '  may  be  permitted, 
under  the  order  of  the  proper  court 
having  jurisdiction,  to  use  and  oc- 
cupy the  same.'  The  guardian  will 
be  required  to  report  annually  to  the 
county  court  the  condition  of  the  es- 
tate of  the  minors,  showing  their  in- 
come and  cost  of  support  and  educa- 
tion, and,  whenever  it  may  appear 
that  the  use  and  occupation  of  the 
homestead  is  no  longer  necessaiy,  an 
order  will  be  entered  requiring  it  to 
be  surrendered  to  the  owners  of  the 
fee.  There  is  no  limitation  on  the 
right  of  the  minors  to  the  use  and 
occupation  of  the  homestead  with 
their  guardian,  except  the  discretion 
of  the  county  judge,  subject,  of 
course,  to  revision  on  appeal.  No 
issue  as  to  the  necessity  of  setting  the 
land  apart  to  them  has  been  made, 
either  by  the  pleadings  or  the  evi- 
dence, and  the  decision  of  the  case  is 
rested  squarely  on  the  proposition 
which  we  have  stated  as  deduced 
from  the  conclusions  of  the  judge 
who  tried  the  cause  below.     We  are 


90 


FAMILY    HEADSHIP. 


ing  upon  tliis  subject,  and  decisions  bearing  upon  it  are  seem- 
ingly at  variance  with  each  other.  All  shades  of  view  are 
presented ;  from  the  deepest  to  the  most  delicate. 

The  differences  may  be  somewhat  reconciled  by  noting,  in 


of  the  opinion  that  the  minor  chil- 
dren of  E.  C.  Hall  have  the  right  to 
have  the  homestead  set  apart  to  them 
for  their  use  and  occupation,  although 
their  legal  custody  and  residence 
may  have  been  with  their  mother  on 
a  homestead  belonging  to  her  at  the 
death  of  their  father ;  and  that  the 
court  below  erred  in  denying  the  ap- 
plication of  Mrs.  Hall  as  the  guardian 
of  said  minors,  unless  E.  C.  Hall  had 
the  right  to  dispose  of  the  property 
by  will  in  such  a  manner  as  to  defeat 
the  minors'  right  of  homestead. 
'  Every  person  competent  to  make  a 
last  will  and  testament  may  thereby 
devise  and  bequeath  all  the  estate, 
right,  title  and  interest  in  possession, 
reversion  or  remainder  which  he  has, 
or  at  the  time  of  his  death  shall  have, 
of,  in  or  to  any  lands,  tenements, 
hereditaments  or  rents  charged  upon 
or  issuing  out  of  them,  or  shall  have 
of,  in  or  to  any  personal  property,  or 
any  other  property  whatever,  subject 
to  the  limitations  prescribed  by  law.' 
Rev.  St.,  art.  4858.  Such  is  our  stat- 
ute which  autliorizes  a  person  to  dis- 
pose of  his  property  by  will.  A  will, 
it  will  be  observed,  must  be  made 
*  subject  to  the  limitations  prescribed 
by  law.'  We  are  aware  that  the  su- 
preme court  has  heretofore  declined 
to  pass  on  this  question.  In  Hudgins 
V.  Sansom,  72  Tex.  231 ;  10  S.  W.  Rep. 
104,  there  was  a  will  devising  a  large 
estate.  Mrs.  Hudgins,  the  guardian 
of  the  minor  children,  had  been  per- 
mitted under  order  of  the  court  to 
occupy  the  homestead  with  her 
wards.  When  the  estate  was  ready 
for  partition,  the  court  refused  to 
make  partition  of  the  homestead,  and 
on  appeal   to  the  district  court  the 


same  judgment  was  entered.  There 
was  no  specific  disposition  of  the 
homestead  made  by  the  will,  but  it 
was  embraced  in  the  general  words, 
'  all  my  real  estate,  wherever  the 
same  may  be  situated.'  It  was  held 
'  unnecessary  in  this  case  to  consider 
whether  a  testator  could  by  wiU  so 
dispose  of  property  used  as  home- 
stead as  to  prevent  the  occupation 
of  it  by  a  surviving  wife  or  by  guard- 
ian with  the  minor  children,  under 
permission  of  the  proper  court."  And 
in  Little  v.  Birdwell,  27  Tex.  690, 
Judge  Moore  said :  '  We  are  not 
called  upon  in  this  case  to  decide 
whether  a  party  can,  by  a  testament- 
ary disposition  of  his  property,  pre- 
vent an  appropriation  of  it  being 
made  by  the  chief  justice,  as  an  al- 
lowance to  the  widow  and  children,' 
etc.  The  widow  had  made  her  ap- 
plication when  it  was  too  late.  More 
than  a  year  had  elapsed,  and  the  es- 
tate had  proved  solvent  and  was 
ready  for  partition.  But  in  the  case 
of  O'Docherty  v.  McGloin,  25  Tex.  72, 
while  perhaps  not  necessary  to  the 
disposition  of  the  case,  it  was  said 
by  Chief  Justice  Wheeler  that  the 
order  setting  apart  the  homestead 
for  the  use  of  the  widow  and  chil- 
dren was  certainly  proper,  irrespect- 
ive of  the  disposition  of  the  fee  by 
the  will.  And  in  the  case  of  Run- 
nels V.  Runnels,  27  Tex.  518,  where 
the  widow  applied  for  her  home- 
stead exemptions  in  an  estate  where 
the  deceased  had  died  testate,  this 
language  is  used :  '  And  since  the 
right  of  a  devisee  is  certainly  in- 
ferior to  that  of  a  creditor,  and  only 
equal  to  that  of  the  heirs  of  an  intes- 
tate,  it  is   an   obvious  consequence 


CLAIMING   AFTER    LOSS    OF    FAMILY. 


91 


each  case,  whether  any  right  was  vested  while  tlie  family  ex- 
isted. After  the  loss  of  family,  the  late  householder  is  al- 
lowed to  hold  his  homestead  exempt,  in  states  where  he  takes 
as  surviving  spouse,  or  as  the  owner  of  an  estate  of  homestead, 

that  the  testator  can,  by  will,  impose 
no  insuperable  barrier  to  the  asser- 
tion of  the  widow's  claim  to  the  prop- 
erty, in  lieu  of  which  the  appellant 
in  this  case  is  seeking  an  allowance.' 
'•  Under  the  act  of  1818  concerning 
estates  of  deceased  persons,  it  has 
been  uniformly  held  that  in  case  of 
an  insolvent  estate  the  fee  to  the 
homestead  vested,  on  the  death  of 
husband  or  wife  or  both,  in  the  re- 
maining constituents  of  the  family, 
to  the  exclusion  of  the  adult  heirs, 
and  when  the  estate  was  solvent  it 
descended  and  was  subject  to  parti- 
tion as  other  property.  Section  52  of 
article  10  of  the  constitution  of  1876 
was  doubtless  intended  for  the  ben- 
efit of  ihe  heirs,  and  sliall  we  say  the 
devisees  and  legatees  of  a  decedent, 
by  preventing  the  title  from  vesting 
in  the  constituents  only  of  the  family 
at  the  time  of  the  death  of  the  head. 
But  it  also  goes  further,  and  protects 
the  survivor  and  the  minor  children 
in  the  occupation  and  use  of  the 
homestead,  although  the  estate  may 
be  solvent.  The  hardship  of  making 
partition  of  an  estate  against  the  in- 
terests of  the  widow  and  minor  chil- 
dren when  the  estate  is  barely  solvent 
is  apparent.  Is  there  anything  in  the 
language  of  the  constitution  that 
would  imply  that  the  rule  would  be 
different  where  there  is  a  will?  There 
can  be  no  reason  for  it,  unless  it 
might  be  said  that  the  law  means  to 
leave  the  surviving  husband  or  wife 
free  to  dispose  of  all  property  at 
pleasure.  This,  however,  is  not  the 
case,  for,  although  the  survivor,  as 
the  owner  of  the  fee,  may  convey  or 
incumber  the  homestead  without  re- 
gard  to   the    minor   children   living 


thereon  with  him,  yet,  if  he  should 
incumber  it  and  die,  the  law  would 
interpose  and  set  apart  the  home- 
stead to  the  children,  notwithstand- 
ing the  incumbrance.  All  contracts 
are  made  with  regard  to  the  law  ex-  i 
isting  at  the  time,  and  the  law  be- 
comes a  part  thereof ;  and  a  creditor 
takes  his  chances  on  collecting  his 
debt  during  the  life-time  of  the  in- 
cumbrancer. A  surviving  parent 
may  sell  or  incumber  the  homestead, 
and  the  children  have  no  right 
thereto  as  such,  that  will  prevent  it ; 
but,  if  he  dies  possessed  of  the  legal 
title,  it  becomes  charged  with  all  the 
statutory  exemptions  even  to  the  en- 
tire defeat  of  the  incumbrance.  And 
it  can  make  no  difference,  so  far  as 
public  policy  is  concerned,  whether 
he  died  testate  or  intestate.  Every 
will  executed  by  a  testator  is  subject 
to  the  law  in  force  at  the  time  of  his 
death  affecting  the  property  which  is 
devised  bj'  him.  At  common  law  the 
right  of  the  wife  to  dower  could  not 
be  defeated  by  the  will  of  her  hus- 
band, and,  if  she  was  provided  'for  in 
the  will  in  a  manner  inconsistent 
with  her  right  of  dower,  she  could 
elect  whether  she  would  take  her 
dower,  or  surrender  that  right  and 
take  under  the  will  as  devisee.  The 
spirit  of  our  laws  from  the  earliest 
days  of  the  republic  has  been  to  make 
provision  for  the  family  on  the  death 
of  the  head  thereof.  At  first  the 
widow  took  the  one-fourth,  as  under 
the  Spanish  law,  and,  after  this  right 
had  been  abrogated  by  the  adoption 
of  the  common  law,  subsequent  laws 
were  enacted  from  time  to  time, 
each  extending  and  perfecting  the 
principle,  which  has  steadily  grown. 


92 


FAMILY    HEADSHIP. 


or  (in  some  states)  as  one  who  acquired  while  he  was  the 
head  of  a  farail}^  by  declaring,  marking,  recording  or  doing 
whatever  the  governing  statute  required. 

But  where  nothing  is  required  to  distinguish  the  homestead 


There  has  been  no  limitation  of  the 
right  except  that  in  favor  of  the  own- 
ers of  the  fee  made  in  the  present  con- 
stitution, which,  while  limiting  the 
rule  in  that  respect,  has  extended  it 
with  respect  to  the  use  of  the  home- 
stead to  the  survivor  and  minor  chil- 
dren in  solvent  estates,  as  well  as  in 
those  which  are  insolvent. 

"  As  said  by  Judge  Gaines  in  the 
case  of  Zwernemann  v.  Von  Eosen- 
berg,  76  Tex.  525 ;  13  S.  W.  Rep.  485 : 
'  The  language  "  shall  descend  and  vest 
as  other  property  of  the  deceased  " 
was  employed,   we  think,  to  deter- 
mine-the  persons  who  should  take, 
and  their  respective  interests,  but  not 
the  conditions  which  were  to  be  im- 
posed upon  the  inheritance.'  And  we 
think,  also,  that  it  was  not  intended 
to  determine  the  manner  in  which 
the  homestead  should  descend  and 
vest  in  order  to  be  preserved  to  the 
family,  whether  by  will  or  under  the 
statute  of  descent  and  distribution 
The  terms  used  will  apply,  whether 
the  deceased  dies  testate  or  intestate. 
Though  the  language  '  shall  be  gov- 
erned by  the  same  laws  of  descent 
and  distribution '  may  apply  to  an  in- 
heritance where  there  is  no  will,  yet 
the  language  of  the  entire  section, 
taken  together,  does  not  exclude  the 
idea  that  it  may  apply  both  where 
the  property  descends,  in  the  absence 
of  a  will,  and  where  it  vests  under  a 
will.     In  the  present  case  there  is  no 
direct  or  absolute  alienation  by  de- 
vise of  the  land.    It  is,  by  the  terms 
of  the  will,  to  be  sold  under  the  di- 
rection of  the  court,  and  the  execu- 
tor is  made  a  trustee  for  the  applica- 
tion of  the  proceeds  of  the  sale  in  the 
manner  directed  therein.     The  dev- 


isees, however,  took  vested  inter- 
ests, subject  only  to  the  use  and  oc- 
cupation of  the  homestead,  and  the 
administration  of  the  estate  in  the 
county  court  All  of  the.  estate  of  a 
deceased  person,  whether  devised  or 
bequeathed  or  not,  except  such  as 
may  be  exempted  by  law  from  tlie 
payment  of  debts,  is  liable  in  the 
hands  of  the  devisees  or  legatees  or 
heirs  to  the  payment  of  the  debts  of 
the  testator  or  intestate.  The  rights 
of  heirs  and  devisees  or  legatees  are 
equal ;  those  of  devisees  can  be  no 
greater  than  those  of  heirs;  and, 
whether  the  decedent  died  testate  or 
intestate,  the  rights  of  creditors  are 
not  affected  in  all  property  not  ex- 
empt from  execution.  A  will  can  no 
more  defeat  the  rights  of  creditors 
than  the  course  of  descent  cast  at  the 
death  of  the  intestate  can.  Nor  can 
a  will  affect  the  rights  of  the  surviv- 
ing husband  or  wife  or  the  minor 
children  in  property  exempt  from 
execution,  any  more  than  it  can  affect 
the  rights  of  creditors  in  property  not 
so  exempt. 

"  The  right  of  the  minor  children 
to  use  and  occupy  the  homestead 
through  their  guardian  is  superior  to 
the  right  of  the  executor  or  the  dev- 
isees under  the  will,  or  the  adult 
heirs  of  an  intestate,  who  take  the 
fee  in  the  land,  or  an  interest  there- 
in, subject  to  the  bad  en  placed 
thereon  by  the  constitution  and  the 
laws.  It  is  not  the  policy  of  our  law 
to  make  any  distinction  in  favor  of 
one  who  takes  land  by  devise  as 
against  one  who  takes  as  an  heir. 
Statutes  govern  in  both  cases.  A 
person  may  devise  his  property  by 
will  to  the  exclusion  of  his  heirs,  but 


CLAIMING    A-E'TEK    LOSS    OF    FAMILY. 


93 


from  the  realty,  except  occupancy ;  and  an  occupant  has  not 
manifested  any  design  to  hold  his  residence  subject  to  the  re- 
straint which  the  homestead  laws  impose,  while  he  had  a 
family  —  can  he,  upon  losing  his  family,  now  for  the  first  time, 
claim  exemption  to  defeat  execution? 

The  decisions,  which  at  first  view  seem  to  answer  this  ques- 
tion in  the  affirmative,  will  be  found  to  turn  upon  particular 
statutes ;  or  to  follow  the  erroneous  assumption  that  the  pol- 
icy of  homestead  laws  is  to  bestow  charity  upon  impecunious 
debtors ;  or  to  uphold  the  novel  rule  that  all  homestead  ques- 
tions must  be  solved  liberally  in  favor  of  the  debtor  regard- 
less of  the  conditions  on  which  the  benefit  is  conferred ;  or  — 
which  is  perhaps  the  most  common — to  turn  upon  the  ques- 
tion whether  homestead  is  necessarily  lost  by  the  loss  of  family, 
after  having  been  once  legally  acquired,' 


it  must  be  done  '  subject  to  the  im- 
itations prescribed  by  law.'  We  con- 
clude that  E,  C.  Hall,  the  father  of 
the  minors,  R.  E.  Lee  Hall  and  Elma 
Hall,  did  not  have  the  right  to  dis- 
pose of  his  homestead  by  will  so  as 
to  prevent  its  occupation  and  use  by 
the  guardian  of  said  minors  with 
them  under  permission  of  the  proper 
court  Counsel  for  appellee  ask,  in 
the  event  the  court  should  hold  that 
this  cause  was  improperly  decided 
by  the  court  below,  and  an  erroneous 
judgment  rendered,  that  judgment 
be  not  here  rendered,  giving  the 
guardian  permission  to  occupy  the 
entire  homestead  during  the  minor- 
ity of  the  children,  but  to  remand 
the  cause  for  trial  as  to  how  much  of 
the  homestead  the  guardian  should 
be  permitted  to  occupy.  There  is 
nothing  left  for  the  court  below  to 
determine.  Under  the  facts  of  this 
case,  it  was  the  duty  of  the  court  to 
set  apart  the  homestead  in  its  entirety 
to  the  minors  for  their  use  and  occu- 
pation with  their  guardian.  We 
know  of  no  law  which  would  author- 
ize the  setting  apart  of  a  portion  of 
*he  homestead,  and  do  not  so  construe 


the  constitution.  It  is  treated  as  an 
entirety,  and  is  not  subject  to  parti- 
tion '  so  long  as  the  guardian  of  the 
minor  children  of  the  deceased  may 
be  permitted,  under  the  order  of  the 
proper  court,  having  jurisdiction,  to 
use  and  occupy  the  same.'  How  long 
she  may  be  permitted  to  do  this  is  a 
question  for  determination  hereafter 
by  the  court,  on  proper  application 
made  to  it,  showing  that  the  i-eason 
for  such  use  and  occupation  no  longer 
exists,  and  whenever  a  proper  case 
may  arise.  We  are  of  the  opinion 
that  the  judgment  of  the  court  be- 
low should  be  reversed,  and  judg- 
ment here  rendered  in  favor  of  the 
appellants,  with  direction  to  the  dis- 
trict court  to  enter  the  same  as  its 
judgment,  and  to  certify  it  to  the 
county  court  for  observance." 

Adopted  by  supreme  court,  June  23. 
1891. 

1  Bank  v.  Shelton,  87  Tenn.  393  {see 
Tenn.  Code,  g  2940,  M.  &  V.) ;  Webb 
V.  Cowley,  5  Lea,  722;  Header  v. 
Place,  43  N.  H.  307;  Atkinson  v.  At- 
kinson, 40  N.  H.  249 ;  Myers  v.  Ford. 
22  Wis.  139 ;  Beckman  v.  Meyer,  75 
Mo.  333 :  Bradley  v.  Rodelsperger,  3 


94:  FAMILY    HEADSHIP. 

When  the  law  protects  from  creditors  the  home  of  the  head 
of  a  family,  and  not  the  home  of  a  single  individual,  it  would 
seem  to  be  a  very  liberal  interpretation  indeed  which  would 
give  the  protection  to  one  living  alone,  having  no  family 
whatever,  present  or  absent.  Yet  it  has  been  held  that 
when  homestead  right  has  been  acquired  by  a  head  of  a 
family,  under  a  statute  which  limited  the  acquisition  to  "  a 
houseliolder  having  a  family,"  the  right  is  not  divested  by  the 
loss  of  every  inmate  of  the  househald  except  him  who  had 
been  its  head.  This  construction  was  supported  by  the  re- 
mark: "Any  other  construction  would  render  a  husband  who 
had  been  deprived  of  his  family  by  accident  or  disease,  or  by 
their  desertion  without  fault  of  his,  liable  to  be  instantly 
turned  out  of  his  homestead  by  his  creditors."  '  Otherwise 
stated,  a  different  construction  would  hold  the  lone  widower 
to  be  not  a  "  householder  having  a  family,"  and  therefore 
liable  to  be  made  to  pay  bis  honest  debts  by  the  forced  sale  of 
property  not  exempted  by  law. 

"  The  reason  assigned  is  not  very  satisfactory,  or,  at  most, 
is  one  to  be  addressed  to  the  political  departments  of  the  gov- 
ernment :  so  the  decision  seems  to  savor  of  what  Jeremy  Ben- 
tham  calls  judge-made  law,"  was  said  by  a  court  that  adopted 
the  interpretation.^ 

S.  C.  226;  Kimbrel  V.  Willis,  97  111.  particular  provisions  of  the  statutes 

494 ;  Redfern  v.  Redfern,  38  111.  509 ;  governing  when  they  were  rendered. 
Woods  V.  Davis,  34  la.  264;  Byers  v.        i  Silloway  v.  Brown,  12  Allen,  34; 

Byers,  21  la.  268 ;  Floyd  v.  Hosier,  1  Doyle  v.  Coburn,  6  Allen,  71. 
la.    512;  Greenwood  v.  Maddox,  27        2  Stanley  v.  Snyder,  43  Ark.  429. 

Ark.  659 ;  Zapp  v.    Strohmeyer,    75  And  the  following  are  cited  as  fol- 

Tex.   638 ;  Lacy  v.   Rollins,  74  Tex.  lowing  the  Massachusetts  cases :  Bar- 

566 ;  Reeves  v.  Petty,  44  Tex.   251 ;  ney  v.  Leeds,  51  N.  H.  253 ;  Webb  v. 

Burns  v.  Jones,  37  Tex.  50 ;  Petty  v.  Cowley,  5  Lea  (Tenn.),  722 ;  Beckman 

Barrett,  37  Tex.  84 ;  Kessler  v.  Draub,  v.  Meyer,  75  Mo.  333 ;  Taylor  v.  Boul- 

52  Tex.  575.     The  Iowa  statute  de-  ware,  17  Tex.  74;  Kessler  v.  Draub, 

Clares    that    the    surviving    spouse,  52  Tex.  575 ;  Blum  v.  Gaines,  57  Tex. 

though    childless,  continuing  to  re-  119;   Kimbrel  v.  Willis.  97  111.  49i. 

side  in  the  house  used  as  a  home-  And  the  court  adds :  "  A  contrary 

stead  prior  to  the  death  of  the  other  view  was  taken  in  Cooper  v.  Cooper, 

marital  partner,  shall  be  deemed  the  24  O.  St.  488 ;  Santa  Cruz  v.  Cooper, 

head  of  the  family  and  entitled  to  56  Cal.  339,  and  Gallighan  v.  Payne, 

exemption.     McClain's  Code,  §  3163  34  La,   An.   1057,  upon  the  maxim 

et  seq.    The    decisions,    cited    from  that  cessante  ratione,  ceasat  et  ipsa 

Massachusetts,  New  Hampshire,  Illi-  lex.     Compare  also  Calhoun  v.  Will- 

nois,  Tennessee  and  Texas,  turn  on  lams,  32  Gratt.  18." 


CLAIMING    AFTER    LOSS    OF    FAMILY.  95 

The  court  thus  following  the  decision  first  cited  by  it,  not 
only  characterized  it  as  judicial  legislation,  but  also  pointed 
out,  as  explanatory  of  it,  that  "  estate  of  homestead  "  was  rec- 
ognized where  it  was  rendered.  That  it  should  have  been  fol- 
lowed,  after  these  concessions,  seems  singular:  especially  so, 
in  view  of  the  vigorous  dissent  of  the  Chief  Justice.  He 
showed  that,  by  the  settled  policy  of  his  own  state,  "  the 
primary  policy  of  the  homestead  laws  "  had  "  always  been  to 
provide  for  the  family,  and  that  the  protection  which  inures 
to  the  benefit  of  the  debtor  himself  "  was  "merely  incidental."  ' 

Wherever  the  legislator  has  created  homestead  exemption 
for  the  benefit  and  protection  of  families,  and  has  made  real 
estate  inviolable  by  execution  w^hen  owned  by  the  head  of  a 
family,  with  restrictions  as  to  the  extent  and  value  of  the 
favored  home,  and  yet  has  not  expressly  or  impliedly  ex- 
tended the  benefit  to  solitary  housekeepers,  it  is  not  for  the 
courts  to  interpose  between  the  debtor  and  creditor,  to  ex- 
tend the  legislation.  "  The  leading  idea  upon  which  the  con- 
stitution and  statute  are  both  predicated  is  the  protection  of 
the  family.  To  carr-y  out  this  intent,  the  homestead  of  the 
head  of  the  family  is  protected  from  forced  sale.  .  .  .  But 
unless  the  person  is  the  head  of  a  family,  the  right  of  home- 
stead cannot  exist.  And  cannot  the  same  person  at  one  time 
be  the  head  of  a  family,  and  not  at  another?  And  if  the 
privilege  is  an  incident  to  a  certain  state,  and  that  state  itself 
ceases,  why  should  not  the  incident  fall  Avith  it?  As  the  pri- 
mary object  of  the  law  was  the  protection  of  the  family,  when 
the  family  ceases  to  exist  the  reason  for  the  privilege  is  gone ; 
and  why  should  not  the  privilege  itself  also  cease?  As  the 
end  contemplated  by  the  law  can  no  longer  be  attained,  why 
should  the  means  be  preserved  when  they  are  no  longer 
wanted?  As  the  law  will  not  allow  an  individual  the  right 
of  homestead  before  he  becomes  the  head  of  a  family,  why 
should  it  allow  him  the  right  after  he  ceases  to  be  such?  The 
only  reason  why  the  law  will  not  allow  it  in  the  one  case  is 
equally  applicable  to  the  other.  When  an  individual  has  not 
been,  or  has  ceased  to  be,  the  head  of  a  family,  the  law  can- 
not anticipate  that  he  will  thereafter  become  such  in  either 

1  Stanley  v.  Snyder,  supra,  p.  435. 


96 


FAMILY    HEADSHIP. 


case.  When  he  does  in  fact  become  the  head  of  a  family  the 
law  protects  him  for  their  benefit.  He  is  the  representative 
of  the  family.  But  where  there  is  no  family  to  protect,  will 
the  law  defeat  the  just  claims  of  creditors  for  the  purpose  of 
accomplishing  no  beneficial  end  ? 

"  It  is  true  that  he  once  had  a  family,  and  he  also  once  had 
protection  for  that  family,  but  since  the  family  has  ceased  to 
exist  the  protection  is  not  needed.  .  .  .  The  privilege  and 
responsibility  must  go  together.  .  .  .  The  law  does  not 
look  to  his  past  or  future,  but  to  his  present  condition."  ^' 

The  position  of  the  dissenting  Chief  Justice  is  well  sup- 
ported, if  it  be  conceded  that  the  claimant  of  a  homestead  was 
seeking  to  acquire  the  exemption  right  now,  for  the  first  time, 
after  the  loss  of  his  family  —  not  merely  asserting  a  previously 
vested  "  estate  of  homestead,"  or  a  previously  vested  "  privi- 
lege" upon  his  own  property.  Many  decisions  sustain  the 
principle  that  without  existing  family  headship,  the  owner 
and  occupant  of  a  home  cannot  acquire  the  homestead  im- 
munity.- 


1  Quoted  from  Eevalk  v.  Kramer,  8 
Cal.  66,  in  dissenting  opinion  of  Cock- 
rill,  C.  J.,  in  Stanley  v.  Snyder,  43 
Ark.  435.  He  maintained  that  the 
rule  in  Arkansas  had  been  different 
from  that  followed  in  the  case  from 
which  he  dissented.  He  said :  "  As 
long  ago  as  McKenzie  v.  Murphy,  24 
Ark.  155,  Mr.  Justice  Fairchild,  for 
the  court,  said  of  a  statute  not  mate- 
rially varying  from  our  present  con- 
stitutional provision  in  this  respect, 
that  it  intended  an  individual  benefit 
for  the  head  of  the  famil3%  that  '  dis- 
connected from  the  family,  the  head 
of  it  was  [is]  entitled  to  no  considera- 
tion.' As  late  as  Harbison  v.  Vaughan, 
42  Ark.  539,the  policy  was  re-affirmed 
in  almost  the  same  language.  With- 
out awaiting  a  change  in  the  law,  the 
court  now  awards  the  debtor  a  home- 
stead, not  to  protect  his  family 
against  the  vicissitudes  of  fortune,  as 
was  said  in  Ward  v.  Mayfield,  41  Ark. 
94" 


2  Hill  V.  Franklin,  54  Miss.  632; 
Taylor  v.  Smith,  54  Miss.  50 ;  Meach- 
am  V.  Edmondson,  54  Miss.  746 ;  Black- 
well  V.  Brougliton,  56  Ga.  392 ;  Heard 
V,  Downer,  47  Ga.  631 ;  Hart  v.  Evans, 
80  Ga.  330 ;  Nelson  v.  Commercial 
Bank,  80  Ga.  328 ;  Barrett  v.  Durham, 
80  Ga.  336;  Van  Horn  v.  McNeill,  79 
Ga.  121 ;  Calhoun  v.  McLendon,  42 
Ga.  406 ;  Gallighar  v.  Payne,  34  La. 
Ann.  1057 ;  Dobson  v.  Butler,  17  Mo. 
87 ;  Santa  Cruz  v.  Cooper,  56  Cal.  339 ; 
Revalk  v  Kramer,  8  Cal.  66 ;  Cooper 
v.  Cooper,  24  O.  St.  488 ;  Inge  v.  Cain, 
65  Tex.  75;  Duke  v.  Eeed,  64  Tex. 
705 ;  Givens  v.  Hudson,  64  Tex.  471 ; 
Davis  v.  McCartney,  64*  Tex.  584; 
Newland  v.  Holland,  45  Tex.  588; 
Sears  v.  Sears,  45  Tex.  557 ;  Wilson  v. 
Cochran,  31  Tex.  677;  Stewart  v. 
Mackey,  16  Tex.  56 ;  Earle .  v.  Earle, 
9  Tex.  630 ;  Trawick  v,  Harris,  8  Tex. 
312;  Lee  v.  Kingsbury,  13  Tex.  68; 
Green  v.  Marks,  25  111.  204 ;  Barnes  v. 
Rogers,  23  111.  290 ;  McKenzie  v.  Mur- 


CLAIMING    AFTER    LOSS    OF    FAMILY.  97 

The  following  case  ai'ose  under  a  statute  which  provided 
that  "  every  citizen  of  this  state,  male  or  female,  being  a  house- 
holder and  having  a  family,"  shall  be  entitled  to  homestead 
exemption:^  A  widower,  without  children,  having  a  married 
adopted  daughter  and  her  husband  residing  with  him,  but  no 
other  family,  claimed  that  his  dwelling  was  exempt.  The  court 
said :  "  There  are  authorities  which  hold  that  a  man  who  has 
acquired  a  homestead  exemption  by  reason  of  the  fact  that  he 
has  a  wife  or  minor  children  will  not  lose  it  by  the  death  of 
the  wife  and  the  attainment  of  majority  and  removal  of  the 
children.  They  rest  upon  the  assumption  that  the  homestead 
exemption  is  an  estate  which,  once  acquired,  is  not  forfeited 
by  the  act  of  God,  or  by  circumstances  over  which  the  owner 
has  no  control.  We  cannot  assent  to  either  the  reasoning  or 
the  result  of  these  cases. 

"  The  homestead  exemption  is  a  privilege  rather  than  an 
estate.  For  the  benefit  of  the  family,  the  law  exempts  the 
home  of  the  family  from  the  burden,  which  rests  upon  all  the 
other  property,  of  being  appropriated  to  the  debts  of  the  owner. 
This  immunity  depends  upon  two  contingencies;  first,  occu- 
pancy as  a  home;  second,  that  the  owner  shall  have  a  family. 
When  either  ceases,  the  exemption  is  at  an  end."  ^ 

A  householder  supported  his  aged  parents,  who,  with  him- 
self, constituted  the  family  of  which  he  was  the  head.  They 
died,  leaving  him  the  sole  occupant  of  the  dwelling.  Sued  by 
a  creditor,  he  claimed  exemption  for  his  home ;  but  it  was  de- 
nied him,  for  the  reason,  assigned  by  the  court,  that  the  home- 
stead statute  was  for  the  benefit  of  the  family  —  not  to  screen 
a  man  from  his  creditors  when  he  has  no  wife  nor  child  nor 
other  dependent  leaning  on  him  for  support.' 

When  a  homestead  has  been  set  apart  to  the  head  of  a 
family,  it  continues  inviolable  while  the  family  endures.     The 

phy,  24  Ark.  155 ;  Ward  v.  Mayfield,  Bowne  v.  Witt,  19  Wend.  475 ;  Wha- 

41  Ark.  94;  Harbison  v.  Vaughan,  42  len  v.  Cadnian,  11  Iowa,  226. 

Ark.  539 ;  Abercrombie  v.  Alderson,  i  Miss.  Code  of  1871,  §  2135.  (Same : 

9  Ala.  981 ;  Keiflfer  v.  Barney,  31  Ala.  Code  1880,  §  1248.) 

196 ;  Calhoun  v.  Williams,  32  Gratt.  -  Hill  v.  Franklin.  54  Miss.  632-5 ; 

18 ;  Gunn  v.  Gudehus,  15  B.  Mon.  452 ;  Taylor  v.  Smith,  54  Miss.  50 ;  Meacham 

Heaton  v.  Sawyer,  60  Vt.  495 ;  Wood-  v.  Edmonson,  54  Miss.  746. 

worth  V.   Comstock,  10  Allen,  425;  3  Calhoun  v.  Williams,  32  Gratt.  18. 
Wiggin    V.    Buzzell,    58  N.   H.  329; 
7 


OS  FAMILY    IIEADSniP. 

family  exists,  though  the  children  may  have  reached  majority, 
if  the  parents  remain.^  Thougli  the  mother  be  dead,  the 
father  with  a  second  wife  is  still  the  head  of  the  family  and 
the  homestead  secure.  "  All  that  a  man  has  to  do  after  secur- 
ing homestead  .  .  .  is  to  keep  on  being  the  head  of  a 
family  without  break  or  interval."  ^ 

The  second  wife,  coming  into  the  family  ^iv'hile  the  first  set 
of  children,  or  some  of  them,  are  yet  minors,  becomes  its  head 
on  the  death  of  her  husband,  so  that  the  exemption  right  con- 
tinues without  intermission,  as  there  is  no  lack  of  family  or 
family  headship.^ 

§  11.  Comment. 

The  true  rule  is,  follow  the  statute.  When  a  privilege  is 
granted  upon  conditions,  most  assuredly  it  is  not  granted 
nakedly,  with  the  terms  disregarded.  If  the  legislature  has 
granted  nothing  more  than  a  conditional  privilege,  the  courts 
should  not  construe  the  plain  grant  of  it  into  the  creation  of 
an  estate.  If  homestead  is  secured  against  the  hammer  in 
favor  of  the  owner  provided  he  is  its  occupant  with  a  family, 
that  is  not  to  be  expounded  so  as  to  protect  a  widower  or 
bachelor,  without  an  inmate  of  his  dwelling  except  himself, 
from  the  ordinary  course  of  law.  And  a  wrongful  exposition, 
to  the  effect  that  one  man  is  a  family,  cannot  be  strengthened 
by  repetitions.  For  a  family  necessarily  embraces  more  than 
one  person.  A  legislature  cannot  make  one  person  to  be  two 
or  more  by  any  enactment  nominally  to  that  effect.  It  has 
no  jurisdiction  to  change  the  law  of  numbers  —  no  power  to 
vary  the  multiplication  table  which  must  be  ever  the  same 
throughout  the  universe. 

The  weight  of  authority  is  decidedly  against  the  right  of 
claiming  homestead  or  acquiring  the  privilege  of  exemption 
by  any  one  who  does  not  comply  w4th  the  condition  of  family 
headship.  Putting  aside  the  subject  of  the  continuance  of  the 
right,  after  the  loss  of  family,  wiien  it  has  already  been  ac- 
quired, the  right  by  survivorship,  the  widow  and  orphan's 

1  Hart  V.  Evans,  80  Ga.  330 ;  Van  336  (explaining  Newsom  v.  Carlton, 

Horn  V.  McNeill,  79  Ga.  121.  59  Ga.  516). 

2 Nelson  v.  Commercial  Bank,  80  SDlsmuke  v.  Eady,  80, Ga.  289. 
Ga.  328 :  Barrett  v.  Durham,  80  Ga. 


COMMENT.  99 

homestead,  and  all  the  exceptional  provisions  of  statutes  which 
do  not  require  family  headship,  it  may  be  considered  settled 
that  the  condition  is  indispensable  when  homestead  is  to  be 
acquired. 

And  the  authorities  so  holding  are  well  supported  by  reason. 

1st.  Unless  the  legislator  can  thrust  the  homestead  obli- 
gations upon  a  property  holder  without  his  consent,  there 
is  nothing  to  show  that  a  householder  has  accepted  the  con- 
ditions, u.ider  which  the  privilege  of  exemption  is  granted, 
during  the  time  he  had  a  family,  if  he  appears  in  court 
to  claim  them  after  his  family  has  ceased  to  exist.  This 
applies  in  states  where  no  dedication  is  required.  How  can 
the  court  know  that  the  claimant  has  ever  been  under  any  re- 
straint as  to  the  alienation  or  testamentary  disposition  of  the 
real  estate  on  which  he  lived  with  his  family  and  now  lives 
alone?  Is  he  to  have  the  privilege  without  the  burdens? 
Leaving  out  of  view  the  exceptional  states  which  impose  no 
onerous  conditions,  we  may  confidently  conclude  that  one 
who  did  not  put  his  home  under  the  restraints  of  the  home- 
stead law  while  he  had  a  family  cannot  assume  that  his  ex- 
emption right  was  acquired  during  that  time  and  may  be 
asserted  for  the  first  time  after  being  left  alone,  that  he  may 
defeat  his  creditors. 

2d,  Where  dedication  and  recording  are  required  but  have 
not  been  observed,  and  the  family  has  ceased,  he  who  was 
once  the  head  of  it  cannot  set  up  homestead  to  defeat  credit- 
ors, because  they  have  trusted  him  without  notice.  Creditors, 
looking  upon  the  "  Homestead  Book,"  or  the  margin  of  the 
recorded  deed,  or  the  deed  itself  where  that  must  show  the 
existence  of  the  exemption,  may  well  conclude  that  the  man 
they  propose  to  trust  has  not  placed  his  property  under  the 
restraints,  and  secured  for  it  the  immunity,  w^hich  the  home- 
stead law  authorizes.  It  would  therefore  be  unjust  to  allow 
the  debtor  to  claim  exemption  after  judgment, —  not  to  shield 
his  family  of  which  he  is  bereft  but  merely  —  himself. 

3d.  The  homestead  immunity  is  not  to  protect  single  per- 
sons, but  families.  It  is  not  to  protect  the  head  of  a  family 
in  his  individual  capacity  but  as  a  member  of  the  household 
which  he  represents.  It  is  secondarily  for  the  family's  sta- 
bility —  primarily  for  the  good  of  the  state.     So,  when  the 


100  FAMILY   HEADSniP. 

family  is  gone,  the  reason  for  allowing  its  late  head  to  acquire 
this  immunity  is  gone. 

The  statutes  generally  accord  the  right  of  acquiring  the  im- 
munity, by  compliance  with  conditions,  to  every  owner  of  a 
residence  who  is  the  head  of  a  family.  Some  of  them  offer  it 
to  every  debtor  and  his  family,  though  they  hardly  mean  to 
include  him  without  it.  But  homestead  laws  generally  offer 
their  conditional  benefits  without  reference  to  the  monetary 
condition  of  the  acceptor.  Eich  and  poor  are  alike  included, 
though  not  the  homeless  poor. 

The  property  qualification  must  exist,  but  the  benefit  of 
these  laws  are  offered  to  the  non-indebted  as  well  as  to  the 
indebted,  whose  families  might  be  unhoused  by  reason  of  fut- 
ure indiscretions,  misfortunes  or  losses  of  the  husbands  and 
fathers  but  for  the  restraints  which  are  imposed  on  aliena- 
tion, testamentary  disposition  and  execution.  Take  the  family 
away,  and  what  motive  is  left  the  state  for  interfering  be- 
tween debtor  and  creditor?  If  any,  it  certainly  is  not  family 
conservation. 

4th.  There  is  no  more  reason  for  assigning  lost  family  as  a 
ground  for  acquiring,  than  in  assigning  discontinued  occu- 
pancy, forfeited  title,  or  any  formerly  existing  qualification  of 
Avhich  the  claimant  might  once  have  availed  himself,  but  did 
not.  The  aged  widower,  left  alone  in  the  world,  needs  to  be 
sheltered  —  not  more  than  the  aged  woman  who  has  never 
had  a  family.  Both  may  be  proper  objects  of  charity,  but 
homestead  laws  are  not  charitable  enactments  —  their  benefi- 
cence being  incidental.  So,  the  argument  that  the  ex-house- 
holder needs  charity  may  be  as  plausibly  applied  to  the  im- 
pecunious spinster.  Because  he  has  had  a  wifp  and  children, 
is  his  need  necessarily  greater  than  hers? 

ISTo  one  would  contend  that  because  a  man  has  kept  house 
with  his  family  in  a  given  dwelling,  he  can  subsequently  claim 
homestead  there  when  not  occupying  it.  If  he  did  not  acquire 
the  immunity  right  during  occupancy,  he  cannot  after  aban- 
donment. As  a  general  rule,  if  he  did  acquire,  he  lost  by 
abandonment.  So,  by  parity  of  reasoning,  if  he  did  not  ac- 
quire while  he  had  a  household,  he  cannot  after  he  has  lost  it. 

Though  a  divorced  husband  may  retain  the  homestead,  or  a 
divorced  wife  may  do  so,  under  the  judgment  divorcing  them  ; 


COMMENT.  101 

and  though  a  deserted  spouse  may  still  continue  to  enjoy  the 
privilege,  yet  a  homestead  cannot  be  originally  acquired  by  a 
divorced  person  who  is  without  a  family;  nor  by  a  deserted 
or  deserting  spouse  unless  family  headship  is  legally  in  such 
person  claiming  homestead  originally. 

Judgment  was  obtained  against  an  unmarried  man  (who 
was  not  a  householder  or  head  of  a  family  w^ithin  the  sense 
of  the  term  as  employed  in  the  homestead  law)/  who  some 
eight  years  afterwards,  when  he  had  become  married,  claimed 
by  recorded  deed  a  homestead  m  a  tract  of  land  subject  to  the 
lien  of  the  judgment.  The  court  held  the  lien  a  vested  right 
of  the  judgment  creditor,  not  subject  to  divestment  by  the 
owner's  change  of  status.  The  constitution  excepted  mort- 
gages, deeds  of  trust,  pledges  and  other  securities,  bearing  on 
the  property  when  the  exemption  attached,  from  the  opera- 
tion of  the  exemption.^ 

It  has  been  seriously  questioned  elsewhere,  however,  whether 
a  debtor  may  not  have  homestead  despite  the  lien  fixed  before 
his  marriage  on  the  realty  which  he  selects;  —  homestead  that 
will  stand  good  against  those  holding  liens  upon  it  validly 
acquired  when  it  was  not  a  homestead.*  And  it  has  been 
decided  that  a  debtor,  on  becoming  married,  may  select  his 
homestead  free  from  ordinary  debts  existing  before  his  mar- 
riage. The  reasoning  of  the  court  to  support  the  position  is 
that  the  law  giving  the  creditor  his  remedy  and  the  law  giv- 
ing the  debtor  his  exemption  may  be  deemed  as  entering  into 
the  contract  creating  the  debt.  The  creditor  knew  that  the 
debtor  might  wed  and  thus  avail  himself  of  the  exemption 
provision.* 

1  Calhoun  v.  Williams,  32  Gratt.  18.        3  Dye  v.  Cook,  88  Tenn.  275 ;  Pen- 

2  Kennerly  v.  Swartz,  83  Va.  704  der  v.  Lancaster,  14  S.  C.  25 ;  S.  C,  37 
(Hutcheson  v.   Grubbs,   80  Va.  251,    Am.  Rep.  720. 

distinguished);  Code  of  Va,  (1873),  *Ib.;  North  v.  Shearn,  15  Tex.  175; 
ch.  183,  §  5.  Trotter  v.  Dobbs,  38  Miss.  198. 


CHAPTEE  lY. 


OWNERSHIP. 


1.  Title  Not  Conferred  by  Law. 

2.  Property    Qualification    of    the 

Claimant. 

3.  (;!haracter  of  the  Title. 

4.  Leasehold  and  Various  Titles  to 

Parcels. 

5.  Life  Estate. 

6.  Equitable  Title. 

7.  Titles  of  Husband  and  Wife. 

8.  Mutual  Interest  of  Husband  and 

Wife. 


5  9.  Title  Void  or  Fraudulent. 

10.  Joint  Tenancy  and  Tenancy  in 

Common. 

11.  Undivided      Interest  —  Co-ten- 

ancy. 

12.  Exemption  of  Undivided  Inter- 

est. 

13.  Co-tenancy    of    Husband    and 

Wife. 

14.  Partnership  Property. 


§  1.  Title  Not  Conferred  hy  Law. 

The  state  bestows  no  homestead  property  on  anybody.  It 
interferes  with  no  man's  title.  It  protects  what  he  already 
owns,  under  conditions  and  with  limitations.  It  does  not  cre- 
ate the  homestead  system  as  a  charity.  It  does  not  confer 
shelter  and  hearth-stone  upon  the  houseless  poor.  It  does  not 
distinguish  between  the  poor  and  the  rich  in  its  policy  for  the 
conservation  of  existing  homes.  It  does  not  confine  itself  to 
the  shielding  of  the  debtor  from  the  creditor,  as  is  po])ularly 
supposed,  except  in  a  few  states. 

The  homestead  right  has  been  called  an  incumbrance  upon 
land.  The  term  is  doubtless  misapplied,  but  the  right  oper- 
ates something  like  an  incumbrance  qicoad  creditors. 

So  it  is  held  that,  by  the  carving  of  homestead  out  of  land, 
the  incumbrance  is  thus  put  upon  it,  but  the  title  remains  as 
before.  The  owner  (or  the  husband  and  wife,  when  one  is  the 
owner,  under  statutory  provision)  may  mortgage  or  sell  the 
property;  but  the  creditor  cannot,  while  the  homestead  right 
exists,  for  he  encounters  the  incumbrance  or  obstacle  which 
the  law  puts  in  his  way  by  creating  exemption.^ 

The  homestead  estate  terminating  when  the  beneficiaries 
die  or  complete  their  minority  or  cease  to  compose  a  family, 

1  Rutledge  v.  McFarland,  75  Ga.  774. 


PROPERTY    QUALIFICATION    OF    TUE    CLAIMANT.  103 

the  property  on  which  it  was  established  reverts  to  its  owner/ 
it  is  held.  Eather,  it  is  relieved  of  restraint ;  for  the  estab- 
lishing of  a  homestead  does  not  give  the  owner  a  greater  or 
different  title  from  what  he  had  before.  His  clear,  unincum- 
bered title  remains  clear.  Ilis  title,  burdened  Avith  property 
debts,  remains  burdened.  And,  after  the  establishment,  the 
property  continues  liable  to  forced  sale  for  debts  of  that  char- 
acter.'- "  There  is  no  magic  by  which  superior  liens  are  thrown 
off,  or  deficient  titles  made  perfect."  *  When  homestead  has 
been  assigned  to  an  occupant,  he  must  still  stand  upon  the 
merits  of  his  right  of  ownership  and  possession.  If  he  had  no 
title  before,  he  has  no  color  of  title  after  such  assignment. 
There  is  no  conveyance  of  land  or  land  title  in  the  dedication, 
allotment  or  setting  apart  of  homestead.* 

What  the  law  does  is  to  qualify  the  owner's  rights  under 
his  title  so  as  to  give  present  protection  to  his  wife  and  chil- 
dren, and  insure  future  protection  to  them  after  his  death, 
while  they  continue  to  need  it.  It  confers  no  title  upon  him ; 
it  gives  them  protection  rather  than  interest  in  his  title.^ 

§  2.  Property  Qualification  of  the  Claimaut. 

It  has  been  contended  that  the  condition  of  ownership  may 
be  disregarded  in  the  acquisition  of  the  exemption  right.  But 
it  is  imperative.  Non-compliance  with  this  requirement  is  as 
fatal  as  non-occupancy,  the  having  of  no  family,  or  the  neg- 
lect of  dedication,  where  all  these  conditions  are  required  by 

1  Stephens  v.  Montgomery,  74  Ga.  favor  of  a  husband  or- parent  or  or- 
833,  phan  minor  children,  free  from  forced 

2  Newton  v.  Summey,  59  Ga.  397.  sale  for  debts,  etc.     lb.;  Holt  v.  Will- 

3  Bleckley,  J.,  in  deciding  above  lams,  13  W.  Va.,  704.  Rents  not  af- 
cited  case.  fected.     Donaldson  v.  Voltz.  19  W. 

4  Keener  V.  Goodson,  89  N.  C.  273,  Va.  156,  construing  Code  1872-3,  ch. 
Grant  v,  Edwards,  86  N.  C.  513 ;  193,  §  6.  and  Const.,  art.  6,  §  48.  See 
Gheen  v.  Summey,  80  N.  C.  187 ;  Keble  v.  Mitchell,  9  W.  Va,  492 ;  Hil- 
Littlejohn  V.  Egerton,  77  N.  C.  379.  leary  v.  Thompson,   11  W.  Va.  113; 

5  The  constitution  of  West  Virginia  Hartley  v.  Roflfe,  12  W.  Va.  401 ;  Beaty 
does  not  confer  a  right  to  a  home-  v.  Vrom,  18  W.  Va.  291 ;  Tremble  v. 
stead.  Speidel  V.  Schlosser,  13  W.  Va.  Herold,  20  W.  Va.  602;  Stewart  v. 
686.  Const.  1872,  art.  6,  §  48,  con-  Stewart,  27  W.  Va.  177,  all  reviewed 
strued.  It  authorizes  a  homestead  in  Maran  v,  Clarke,  30  W.  Va.  358, 
law  exempting  $1,000  of  property,  in  on  judicial  sales  of  homesteads,  etc. 


1 04  OWNERSHIP. 

statute.  The  last  named  is  less  generally  required  than  the 
others;  the  family  condition,  and  even  occupancy,  are  not  uni- 
versal requisites;  but  ownership  by  some  title  is  an  essential 
everywhere,  required  by  every  statute.  And  the  absurdity  of 
allowing  a  claimant  in  another  man's  real  estate  where  the 
latter  is  privileged  to  claim  it  himself,  the  same  moment,  is 
repulsive  to  common  sense.  Yet  it  has  been  argued  that  if 
one  claims  homestead  in  another  man's  land,  no  one  but  the 
owner  has  any  ground  of  complaint ;  that  the  claimant  may 
•thus  secure  an  exemption  right  which  attaches  to  the  land  he 
does  not  own,  so  that,  if  he  should  buy  it  afterwards,  it  Avould 
be  free  from  judgments  entered  against  him  between  the  date 
of  his  claiming  exemption  and  that  of  the  purchase.  It  is 
said:  "By  filing  the  declaration,  the  party  indicates  his  inten- 
tion to  make  the  land  his  homestead,  and,  if  he  afterwards 
acquires  an  outstanding  title,  it  attaches  itself  to  the  home- 
stead already  acquired,  and  perfects  the  homestead  right.  If 
it  were  otherwise,  a  homestead  could  not  be  secured  which 
would  be  safe  against  forced  sales,  unless  there  w^ere  at  the 
time  a  perfect  fee-simple  in  the  party  who  seeks  the  home- 
stead right.  In  case  of  a  title  in  any  respect  imperfect,  the 
claimant  could  not  perfect  his  title  to  the  homestead  except 
at  the  risk  of  losing  it  altogether,  through  the  intervention 
of  a  creditor,  and  by  the  very  means  adopted  to  render  it 
more  secure ;  and,  under  such  a  construction  of  the  statute,  it 
would  not  be  available  to  the  greater  portion  of  the  class  in 
this  state  who  need  it  most."  Under  this  line  of  reasoning,  it 
was  really  held  that  a  claimant  may  secure  the  homestead  ex- 
emption right  in  land  that  he  does  not  own  by  any  species  of 
title.i 

Putting  aside  what  is  said  about  "  a  perfect  title  in  fee,"  "  a 
title  in  any  respect  imperfect,"  and  similar  phrases;  and  merely 
saying,  in  passing,  that  homestead  laws  do  not  designate  the 
character  of  the  ownership  but  merely  require  ownership  of 
some  kind,  one  cannot  help  noticing  the  concluding  remark  of 
the  quotation.  It  is  virtually  this :  "  If  the  landless  cannot  se- 
cure present  exemption  in  land  to  be  hereafter  acquired,  the 
greater  portion  of  the  poor  would  have  no  homesteads."     The 

1  Spencer  v.  Geissman,  37  Cal  99 ;  Brooks  v.  Hyde,  37  Cal.  378. 


PROPERTY    QUAMFICATION    OF    THE    CLAIMANT.  105 

idea  is  that  the  govermnent  shoiihl  paternally  confer  home- 
steads on  all  who  need  them  most,  whether  they  comply  with 
the  condition  of  ownership  or  not.  Subsequent  compliance  is  to 
retroact,  by  the  law  of  relation,  from  purchase  to  the  time  of 
the  declaration,  according  to  the  gist  of  this  decision.  The 
statute  governing  the  court  authorized  no  such  retroaction. 

Fallacy  follows  from  the  wrongful  assumption  that  the 
policy  of  the  homestead  legislation  is  not  merely  to  protect 
homes  but  to  provide  them ;  or,  in  some  way,  help  the  poor  to 
homes.  The  following  statement  of  the  policy  was  made  in 
a  state  which  requires  ownership  as  a  homestead  condition  (as 
is  done  everywhere,  ex  necessitate,  since  the  state  cannot  pro- 
tect property  when  there  is  none' to  be  protected):  "The 
policy  of  the  constitution  and  statutes  is  not  restricted  to  the 
mere  preservation  of  homesteads  already  acquired,  but  ex- 
tends to  encouraging  their  acquisition,  in  order  to  prevent  and 
avoid  the  unmixed  evil  and  misfortune  of  a  homeless  popula- 
tion ;  '  and  if  we  look  beyond  the  essential  characteristics  of  a 
homestead  —  actual  occupancy  as  a  home,  a  dwelling  place  — 
and  enter  upon  an  inquiry  as  to  the  tenure  upon  which  the 
right  of  occupancy  depends,  we  are  sure  to  contravene  this 
policy.' "  ^  From  this  statement  of  policy  as  a  premise,  the 
court  making  it  infers,  not  that  a  man  unable  to  purchase  a 
homestead,  from  want  of  means,  will  be  helped  paternally  by 
the  government  (as  some  decisions  go  the  length  of  virtu- 
ally holding  by  their  application  of  the  law  of  relation  to  pur- 
chases), but  that  one  living  in  a  rented  house  may  have  his 
homestead  there  while  improving  purchased  land  adjoining  as 
an  addition  to  his  homestead.  No  doubt.  But  this  conclusion 
does  not  follow  from  the  statement  of  the  homestead  policy. 
It  is  unfortunate  that  that  dictum  was  inserted  into  so  good 
an  opinion. 

Can  real  estate,  occupied  as  a  homestead,  but  not  paid  for, 
be  subjected  to  the  payment  of  a  debt  created  after  the  con- 
tract of  purchase,  to  the  extent  of  the  purchase-money  paid 
after  the  creation  of  the  debt? 

The  question  is  asked  with  reference  to  the  common  statu- 

1  Tyler  v.  Jewett,  83  Ala.  93,  99,  quoting  from  Watts  v.  Gordon,  65  Ala 
546. 


lOG  OWNERSHIP. 

tory  exemption  of  homesteads  with  debts  antecedent  to  the 
purchase  excepted  therefrom.^ 

"  It  seems  to  us,"  the  court  said  in  answering  the  question, 
"  considering  the  rights  of  creditors,  the  moral  obligations  of 
debtors,  and  the  reason  for  adopting  the  section  [cited],  the 
word  purchase  was  intended  to  be  understood  and  applied  in 
the  sense  of  acquisition  of  a  homestead  by  fully  paying  for 
it;  for  OAvnership  of  land  cannot  be  absolute,  but  is  condi- 
tional and  held  in  trust  for  the  vendor  until  the  purchase 
price  is  paid,-  .  .  .  The  underlying  principle  ...  is 
that  the  homestead  of  a  debtor  shall  not  be  exempt  from  the 
payment  of  any  just  debt  or  liability,  except  when  he  has  paid, 
or  to  the  extent  he  has  paid,  therefor  prior  to  the  creation  of 
such  debt  or  liability.  For  there  is  no  difference  in  principle 
or  effect  between  purchasing  and  paying  for  a  homestead 
with  means  that  ought  to  have  been  applied  to  payment  of  a 
pre-existing  debt,  and  paying  wholly  or  partially  after  crea- 
tion of  the  debt,  the  purchase  price  of  a  homestead,  even  if  it 
was  bargained  for  prior  to  the  existence  of  the  debt.  In  one 
case  as  well  as  in  the  other  the  means  used  by  the  debtor  to 
pay  for  the  homestead  may  have  been  obtained  directly  from 
the  creditor  when  the  debt  was  created."  * 

A  home  place,  occupied  by  a  man  and  wife  for  twenty 
years,  was  conveyed  to  him  six  months  after  her  death.  The 
long  occupancy  created  no  presumption  of  ownership  in  the 
face  of  the  deed  coming  from  one  whom  the  surviving  hus- 
band recognized  as  the  true  owmer  by  the  very  act  of  accept- 
ing it.^ 

A  husband  contracted  to  purchase  ground,  partly  on  credit. 
The  deed  Avas  to  be  given  on  his  making  the  final  payment. 
He  built  a  dwelling-house  on  the  land,  and  occupied  it,  with 
his  family,  as  their  home.  His  wife  made  and  filed  a  declara- 
tion of  homestead  on  the  property.  The  payments  had  been 
made  from  the  joint  earnings  of  both,  so  far  as  made  at  all: 

1  Geu.  Stat,  of  Ky.,  ch.  38,  art.  13,  527.     Coinpare  Griffin  v.  Proctor,  14 

§  16,  under  which  the  question  arose.  Bush,  571, 

^Citing  Ins,  Co.  v.  Curry,  13  Bush,        ^Holloway  v.  Mcllhenny  Co,  (Tex.), 

312,  14  S.  W,  240. 

SMosely  v,  Bevins  (Ky,),  15  S.  W, 


PROPERTY  QUALIFICATION  OF  THE  CLAIMANT.        107 

SO  wliatever  property  right  had  been  acquired  belonged  to  the 
community.  The  husband  sold  the  house  and  assigned  the 
contract  of  purchase,  without  his  wife's  joinder  —  the  vendee 
making  the  final  payment  and  receiving  the  title  deed. 

An  action  of  ejectment  was  brought  by  this  vendee  to  re- 
cover possession  of  the  house  and  lot.  The  wife  claimed  it  as 
homestead.  The  question  was  whether  her  husband  had 
transferred  any  legal  right  of  property,  without  her  consent 
and  signature;  in  other  words,  whether  the  property  was 
homestead. 

Not  having  been  paid  for,  the  property  was  never  owned 
by  the  husband  and  wife;  so  she  had  declared  homestead 
upon  property  when  she  was  wanting  one  of  the  necessary 
conditions:  ownership.  Her  husband  had  not  the  legal  title  — 
only  a  contract  to  have  it  on  payment  of  the  price.  This  con- 
tract he  assigned  to  another,  who  complied  with  the  essential 
and  received  the  title-deed.  The  ownership  passed,  by  the 
title,  from  him  who  had  promised  to  convey  to  the  husband 
and  wife  on  receipt  of  the  price,  to  the  assignee  who  did  pay 
it :  so  no  homestead  was  ever  owned  by  the  occupants  of  the 
property. 

The  husband,  as  head  of  the  community,  had  the  disposi- 
tion of  the  property-right  in  the  contract,  just  as  though  it 
had  been  his  separate  property.'  The  equitable  interest  of 
the  community  was  at  his  disposal,  since  no  homestead  re- 
straint of  alienation  forbade. 

The  ejectment  suit  was  successful,  on  the  view  above  pre- 
sented of  the  facts  stated.  The  transactions  are  declared  fair 
and  free  from  fraud.  The  law  imposes  no  obligation,  on  a 
husband  to  his  wife,  to  complete  such  a  contract  of  purchase. 
The  imperfect  obligation,  if  any,  was  not  enforceable  by  her 
against  liim  in  a  court  of  justice.  Only  in  foro  consciefitice, 
could  there  have  been  any  obligation,  by  him  to  her,  so  far  as 
the  facts  show ;  and  they  do  not  show  that  there  was  any  in 
that- — the  highest  court.  ''The  husband  had  lawful  right  to 
refuse  to  complete  his  purchase."-  The  wife  had  no  legal 
ground  of  complaint.  The  legal  title  was  in  the  person  who 
had  made  the  executory  agreement  to  sell,  who  was  not  bound 

1  Cal.  Civ.  Code,  §  172.  Pac.  415 ;  Snodgrass  v.  Parks,  79  Cal. 

2  Alexander  v.   Jackson  (Cal.),  25    55 ;  Hicks  v.  Lovell,  64  CaL  14. 


108  OWNERSHIP. 

to  convey  the  land  till  payment.  He  could  not  have  been 
compelled  to  do  so,  at  the  time  the  wife  of  the  occupant  made 
the  homestead  declaration,  which  was  therefore  a  nullity.^ 
He  had  not  parted  with  the  legal  title  till  he  gave  it  to  the 
plaintiff  in  the  ejectment  suit.  The  court  was  clearly  right 
in  holding  that  the  homestead  claimed  was  fatally  wanting 
in  the  essential  condition  of  ownership.'^  Where  there  is  no 
ownership,  it  follows  most  assuredly  that  the  widow  of  the 
occupant  cannot  have  homestead  assigned  to  her  out  of  the 
land.* 

It  has  been  denied  that  there  can  be  homestead  in  a  build, 
ing,  when  the  site  is  not  owned.  If  the  owner  of  it  does  not 
own  the  ground  on  which  it  stands,  he  may  move  it  off  but 
cannot  hold  it  exempt  from  his  debts,  according  to  this  view/ 

§  3.  Character  of  the  Title. 

The  statutes,  w^hich  all  require  that  the  property  shall  be 
owned  by  him  who  claims  it  as  exempt  from  forced  sale,  do 
not  declare  whether  the  title  shall  be  absolute  or  qualified, 
whether  in  fee  or  for  life  or  a  term  of  years,  wdiether  a  free- 
hold or  a  leasehold.  There  might  be  conflicting  claims  between 
owners  under  differently  charactered  titles  to  the  same  land, 
were  it  not  for  that  other  condition:  occupancy.  He  who  act- 
ually occupies  the  premises,  with  his  family,  and  makes  it  his 

^Snodgrass  v.  Parks,  supra.  had  conveyed  it  aod  was  a  mere  oc- 

2  Alexander  v.  Jackson,  supra.  cupant.     It  would  be  a  strange  doc- 

3  Berry  v.  Dobson  (Miss.),  10  So.  45.  trine  that  an  owner  of  land  could  put 
Campbell,  J. :  The  appellant  had  no  a  family  on  each  quarter-section  of 
right  as  to  the  land  derivative  from  his  land,  and  thereby  place  it  beyond 
her  deceased  husband,  for  he  had  no  the  reach  of  creditors, —  his  own  and 
interest  in  the  land  which  was  trans-  the  occupant's, —  whicli  would  re- 
missible. He  was  not  owner  of  any  suit  if  the  occupant  could  claim  it  as 
estate  in  it.  He  was  but  tenant  at  exempt.  The  appellant  had  no  right, 
will,  and  this  tenancy  terminated  by  virtue  of  of  the  conveyance  of  the 
at  his  death.  Homestead  right  is  land  to  her,  for  her  grantors  had  noth- 
founded  on  ownership  of  soiue  as-  ing  to  convey.  They  had  been  ad- 
signable  interest  in  the  land.  It  must  judged  against  hy  the  decree  of  the 
be  "owned  and  occupied."  It  may  chancery  court,  and  the  appellant,  as 
be  the  lowest  kind  of  estate,  but  it  their  grantee,  was  in  privity  with 
must  be  an  interest  in  the  land.  Code,  them,  and  bound  by  the  decree. 
§  1248 ;  9  Amer.  &  Eng.  Enc.  Law,  Affirmed. 

tit  "  Homestead."    The  husband  had        ^  Kuttner  v.  Haines,  85  111.  Ap.  307 : 
no  interest  whatever  in  this  land,  but    Brown  v.  Keller,  32  111.  151. 


CHARACTER    OF    THE    TITLE.  109 

and  their  home,  under  a  legal  right  of  possession,  can  find  no 
successful  competitor  for  the  homestead  privilege  in  one  who 
holds  a  title  different  from  his  in  kind,  even  though  it  be  in 
fee,  w^hich  is  not  supported  by  occupancy. 

The  owner  for  life,  occupying  the  premises  lawfully,  is  the 
lord  of  the  manor  while  he  lives,  and  the  owner  in  fee-simple 
cannot  displace  him.  He  can  maintain  it  against  all  tres- 
passers. In  the  absence  of  exemption  immunity,  his  estate  is 
liable  to  creditors  for  his  debts,  and  therefore  a  proper  sub- 
ject for  the  protection  vouchsafed  by  the  legislator  to  home- 
steads. 

So,  the  ow^ner  for  years,  with  legal  right  of  possession,  actu- 
ally occupjang  with  his  family,  is  an  owner  within  the  stat- 
utory meaning  of  the  requirement  that  the  homestead  shall  be 
"owned  and  occupied."  These  terms  are  frequently  coupled 
together  in  the  homestead  laws.  When  not,  equivalent  ex- 
pressions are  usually  employed.  But  the  character  of  the  title 
is  never  specified. 

The  law  governing  homestead  ownership  under  the  prevail- 
ing system  is  stated  very  clearly,  and  with  a  near  approach  to 
perfect  accuracy,  in  the  following  excerpt  from  a  judicial 
opinion :  "  It  was  not  contemplated,  nor  intended,  by  the  term 
'owned,'  as  employed  in  the  constitution,  that  absolute  own- 
ership, or  an  estate  in  fee,  should  be  essential  to  the  valid  ex- 
emption of  real  property  from  the  payment  of  debts.  There 
is  no  limitation  to  any  particular  estate,  either  as  to  duration, 
quantity  or  extent.  It  is  the  land  on  which  the  dwelling 
place  of  the  family  is  located,  used  and  occupied  as  a  home, 
which  the  constitution  and  statutes  protect,  however  inferior 
may  be  the  title,  or  limited  the  estate  or  interest;  not  because 
there  is  an  estate  or  interest  in  the  land,  but  because  it  is  the 
homestead,  the  dwelling  place  and  its  appurtenances.  Protec- 
tion of  the  estate  or  interest,  of  whatever  dignity  or  inferior- 
ity, is  incidental  to  the  preservation  of  the  homestead.  The 
statute,  adopting  this  construction  of  the  constitution,  ex- 
pressly declares :  '  Such  homestead  exemption  shall  be  opera- 
tive to  the  extent  of  the  owner's  interest  therein,  whether  it 
be  a  fee  or  a  less  estate.'  An  absolute  or  qualified  ownership  — 
a  fee  simple  or  equitable  estate,  or  for  life,  or  for  years  — 
meets  the  requirements  of  the  constitution  and  statutes,  and 


110  OWNERSHIP. 

effectuates  tlicir  policy  and  purposes.  Whatever  right  or  claim 
the  debtor  may  have,  which  may  be  subjected  to  the  payment 
of  debts,  or  is  capable  of  alienation,  falls  within  their  operation, 
and  the  homestead  exemption  may  be  successfully  claimed, 
except  as  against  the  true  owner,  or  a  superior  title.  The  uses 
to  which  the  land  is  devoted,  and  not  the  quality  and  quantity 
of  the  estate,  impress  the  characteristics  of  a  homestead.  The 
lot  leased  by  the  complainant  was  his  homestead  at  the  time 
he  contracted  to  purchase  the  lot  in  controversy,  and  contin- 
ued such  so  long  as  he  continued  to  lease,  use  and  occupy  it  as 
the  dwelling  place  of  himself  and  family."  ^ 

The  expression  in  the  third  sentence  of  this  extract,  that  it 
is  "  not  because  there  is  an  estate  or  interest  in  the  land," 
ought  to  have  been  qualified  so  as  to  read,  "  not  only  be- 
cause — ,"  since  occupancy  alone  is  not  enough.  Something 
must  be  owned  by  some  sort  of  title  to  render  it  susceptible  of 
exemption  and  protection  from  execution.  The  condition  of 
ownership  cannot  be  overlooked,  without  error ;  and  from  a 
reading  of  the  expression  needing  qualification  in  connection 
with  the  context,  it  will  appear  that  the  learned  judge  did  not 
overlook  it.  There  are  remarks  further  on,  in  his  opinion  re- 
specting the  policy  of  homestead  legislation,  which,  it  must  be 
noticed,  are  not  fully  in  accord  with  the  recognition  of  present 
ownership  by  some  kind  of  title  as  one  of  the  conditions  upon 
which  homestead  protection  is  offered. 

There  may  be  the  case  of  one  who  has  parted  with  his  title 
yet  retains  possession  in  such  a  way  as  to  be  protected  as  owner 
quoad  the  creditors.  Such  a  one  was  allowed  to  claim  ex- 
emption. He  had  donated  his  land  after  judgment  for  debt 
had  been  rendered  against  him  but  had  retained  possession 
and  had  continued  to  occupy  it  as  his  homestead.  He  inter- 
posed his  exemption  claim  to  prevent  sale  under  the  judg- 
ment, and  the  court  allowed  it  —  holding  that  no  interest  in 
realty,  beyond  that  which  possession  implies,  is  necessary  to 
sustain  such  plea  against  a  lien  inferior  to  the  exemption 
right.  This  would  seem  to  recognize  the  validity  of  the 
general  lien  but  to  rank  it  below  exemption  considered  as  a 
lien  or  incumbrance.     It  will  strike  the  reader  at  once  that 

1  Tyler  v.  Jewett,  82  Ala,  93,  98 ;  Watts  v.  Gordon,  65  Ala  546. 


CHARACTER    OF    THE    TITLE. 


Ill 


the  claimant  coultl  have  hekl  no  lien  or  incumbrance  on  his 
own  laml.  The  implication  of  ownership  from  tlie  fact  of 
occupanc}"  is  a  position  which  appears  to  bo  better  grounded. 
If  homestead  rig-ht  existed  in  the  claimant  and  had  not  been 
given  np  by  the  donation,  the  general  judgment  would  not 
have  fastened  any  sort  of  lien  upon  the  land  under  the  law  of 
most  of  the  states.^ 


1  Pendleton  v.  Hooper  (Ga.),  13 
S.  E.  313.  Bleckley,  C.  J.:  "The 
premises  in  controversy  consist  of  six 
anres,  and  are  of  the  estimated  value 
of  $400.  Hooper  was  in  possession 
when  the  judgment  against  him  was 
rendered,  and  has  remained  in  pos- 
session ever  since.  He  parted  with 
the  paper  title  by  a  voluntary  con- 
veyance made  to  several  persons, 
some  of  them  minors,  on  the  day  the 
judgment  was  rendered,  and  at  an 
hour  subsequent  to  its  rendition.  The 
lien  of  the  judgment  was  made 
neither  better  nor  worse  by  this  con- 
veyance. Had  he  parted  also  with 
possession,  and  never  reserved  the 
same,  his  ownership  of  the  property 
would  have  been  at  an  end  ;  but,  as 
he  retained  possession,  he  is  still  the 
owner  against  all  the  world  except 
his  donees.  They  may  choose  never 
to  disturb  him,  or  assert  any  title 
against  him.  That  possession  of  land 
imports  ownership  is  familiar  law, 
2  Bl.  Comm.  196 ;  English  v.  Regis- 
ter, 7  Ga.  391.  Naked  possession  is 
the  lowest  and  most  imperfect  de- 
gree of  title,  but  it  is  nevertheless 
enough  to  hold  off  creditors,  where 
exemption  is  claimed  under  section 
2040  of  the  code,  and  where  the 
terms  prescribed  in  section  2041  are 
complied  with.  Here  there  was  a 
compliance  with  these  terms  pend- 
ing the  levy,  and  while  Hooper  was 
in  possession.  It  is  not  disputed  that 
he  was  the  head  of  a  family,  or  that 
he  would  bo  entitled  to  the  exemp- 
tion, if  he  had  not  divested  himself 


of  all  title  except  possession.  But 
he  retained  the  very  thing  which  the 
law  of  exemption  is  solicitous  to  pro- 
tect. It  cares  not  how  little  interest 
the  debtor  may  have,  so  long  as  he 
remams  in  its  actual  enjoyment 
The  exempt  laud  is  "  for  the  use  and 
benefit  of  the  family  of  the  debtor ;  " 
so  says  the  code.  The  exemption 
does  not  depend  on  the  quality  or 
duration  of  the  estate  which  the 
debtor  has  in  the  land.  A  tenancy  at 
will  or  at  sufferance  will  protect  it 
from  levy  and  sale  as  his  pi'operty, 
equally  with  an  estate  in  fee-simple. 
The  exemption  attaches  to  the  land, 
not  merely  to  his  estate  in  it.  Our 
exemption  laws  do  not  cut  up  exempt 
property  into  divers  estates,  but  pro- 
tect the  phj'sical  thing  as  a  whole 
from  the  levy  and  sale,  so  long  as  the 
exemption  continues.  Van  Horn  v. 
McNeill,  79  Ga.  123. 123;  4  S.  E.  Rep. 
111.  Of  course,  it  is  not  meant  to  say 
that,  if  others  have  an  interest  in  the 
property  as  well  as  the  debtor  who 
has  claimed  the  exemption,  the  prop- 
erty would  not  be  subject  to  sale,  so 
far  as  their  interest  is  concerned. 
But  a  forced  sale  of  an  exempt 
thing,  whether  it  be  land  or  person- 
alty, cannot  be  made  as  the  property 
of  the  debtor  against  his  claim  of  ex- 
emption, w  hile  he  is  the  head  of  a 
family,  and  holds  possession,  unless 
the  debt  be  one  which  for  some  rea- 
son overrides  tlie  exemption.  The 
law  devotes  the  tiling  to  the  use  and 
benefit  of  the  family,  as  against  the 
ordinary    rights     of    his    creditors. 


113 


OWNERSHIP. 


Briefly  stated,  tlic  law  in  most  states  seems  to  be  that  in- 
terest in  land,  with  possession  and  exclusive  right  of  ])osses- 
sion,  held  under  lease  or  any  other  title,  gives  the  family 
occupants  the  right  to  claim  the  benefit  of  homestead  exemp- 
tion.* 

Manifestly,  exemption  relates  to  something  which  could  be 
sold  under  execution  in  the  absence  of  it.^ 

If  the  claimant  has  an}^  interest  whatever  in  land,  with  the 
right  of  possession,  he  may  have  it  protected ;  that  is,  it  may 
be  exempted.  If  he  has  none,  what  is  there  for  the  state  to 
protect?     "What  can  the  creditor  get? 

The  possessor  without  right  can  be  ousted  only  by  the  true 
owner  or  some  one  having  a  right  to  possess ;  ^  but  there  must 
be  some  estate  upon  which  to  build  a  homestead  exemption 
right.* 

Though  a  building  on  rented  ground,  owned  by  the  occu- 

Some  debts  are  superior  to  the  ex- 
emption right,  but  the  one  involved 
in  this  case  is  not  of  that  class.  How, 
then,  can  the  land  be  consistently 
treated  as  the  property  of  the  debtor 
for  the  purpose  of  subjecting  it  to 
sale,  and  not  so  treated  for  the  pur- 
pose of  exempting  it?  Tlie  creditor's 
lien  being  inferior  to  the  debtor's 
right  to  have  the  enforcement  of  the 
lien  suspended,  of  what  concern  to 
the  creditor  is  it  that  the  debtor  has 
no  title  to  the  land,  as  against  third 
persons  to  whom  he  has  conveyed  it 
by  a  deed  of  gift?  Even  were  he  a 
trespasser  relatively  to  his  donees,  he 
would,  while  in  possession,  be  owner 
relatively'  to  his  creditors.  The  court 
below  decided  the  case  correctly. 
Judgment  affirmed." 

1  Feldes  v.  Duncan,  30  111.  App.  469, 
475;  Watson  v.  Saxer,  102  111.  585; 
Deere  v.  Chapman,  25  111.  498.  The 
Act  of  1873  gives  an  "  estate  of 
homestead "  in  Illinois :  the  former 
act  gave  mere  exemption.  Raber  v. 
Gund,  110  111.  581;  Conklin  v.  Fos- 
ter, 57  111.  107 ;  Bartholomew  v.  West, 
2  Dill.  293 ;  Sears  v.  Hanks,  14  O.  St. 


301 ;  Vogler  v.  Montgomery,  54  Mo. 
584;  Randal    v.  Eider,    12  Kas.  261. 

2  Conklin  v.  Foster,  57  111.  107; 
Randal  v.  Elder,  12  Kas.  261 ;  Deere 
V.  Chapman,  25  111.  498;  Sears  v. 
Hanks,  14  O.  St.  301 ;  Vogler  v.  Mont- 
gomery, 54  Mo.  584 ;  Bartholomew 
V.  West,  2  Dill.  293. 

3Foss  V.  Strachn,  42  N.  H.  40; 
Davenport  v.  Alston,  14  Ga.  271 ;  Mc- 
Clurken  v.  McClurken,  46  111.  827; 
Brown  v.  Keller,  32  111.  151 ;  Brooks 
v.  Hyde,  37  Cal.  367;  Spencer  v. 
Geissman,  37  Cal.  96;  Mann  v.  Rog- 
ers, 35  Cal.  316 ;  Smith  v.  Smith,  12 
Cal.  223  ;  Calderwood  v.  Tevis,  23  Cal. 
336. 

4  In  Myrick  v.  Bill,  3  Dak.  284,  292, 
it  is  said  :  "  The  rule  seems  to  be  well 
settled  that  while  a  very  limited  es- 
tate in  the  land,  perhaps  a  mere  lease- 
hold interest,  may  be  sufficient  to 
support  a  claim  of  homestead,  some 
estate  in  the  land  is  essential.  There 
can  be  no  homestead  right  in  a  build- 
ing alone,  apart  from  the  land  on 
wliich  it  stands.  .  .  .  Brown  v. 
Keller,  32  111.  152;  .  .  .  Daven- 
port   V.   Austin,   14    Ga.  271."    The 


LEASEHOLD,  AND    VARIOUS    TITLES    TO    PAIiCELS.  113 

pant,  is  personal  property ;  and  he,  as  lessee  of  the  ground, 
has  the  right  to  remove  his  house  at  the  end  of  the  lease,  and 
even  though  he  should  mortgage  it  as  a  chattel,  it  is  his  and 
his  wife's  homestead  while  they  keep  their  family  home  in  it, 
and  therefore  he  cannot  subject  it  to  chattel  mortgage  with- 
out her  conse«nt.^ 

An  easement,  such  as  a  railroad  or  common  road,  gas  or 
water  mains,  may  be  upon  a  homestead  without  affecting  its 
character  as  exempt  property.    The  ownership  is  not  affected.^ 

§  4.  Leasehold,  and  Various  Titles  to  Parcels. 

So  far  as  leased  property  is  susceptible  of  being  conserved 
as  a  home,  by  the  protection  afforded  to  dedicated  homes  in 
general  under  the  homestead  laws,  it  is  governed  by  the  same 
rules  that  apply  to  homesteads  based  upon  property  held  by 
more  enduring  titles. 

The  lease  may  have  but  a  year  to  run,  but  the  wife  and 
children  of  the  lessee  are  interested  in  the  preservation  of 
their  temporary  home,  and  therefore  the  general  rules  gov- 
erning it  are  the  same  as  those  relative  to  a  home  held  in  fee, 
so  far  as  they  are  applicable. 

As  homestead  may  exist  in  an  estate  held  by  leasehold, 
crops  growing  upon  a  leased  plantation  held  and  worked  as  a 
rural  homestead  are  exempt.  If  such  a  crop  has  been  taken 
and  sold  under  execution,  the  lessee  may  maintain  an  action 
for  conversion ;  and  the  title  to  the  land  on  which  the  crop 
was  grown  is  not  drawn  in  question.^ 

last  sentence  quoted  does  not  state  a  423.  In  this  case,  damages  for  con- 
universal  rule.  A  house  on  leased  verting  a  growing  cotton  crop  were 
ground  may  be  that  to  which  home-  claimed.  The  plaintiff  and  appellant 
stead  exemption  can  cling,  under  alleged  that  his  homestead  consisted 
some  statutes ;  and  why  not  anywhere  of  sixty-five  acres  planted  in  cotton  : 
unless  real  estate  is  made  the  only  that  he  had  a  wife  and  seven  children 
nucleus  of  the  right?  A  family  may  living  with  him  on  this  sixty -five 
live  in  a  house  on  leased  ground,  acres  of  land,  and  that  they  had  no 
may  need  protection,  and  if  the  other  home.  That  on  14th  September, 
head  of  the  family  owns  the  dwell-  1887,  his  growing  crop  of  cotton  on 
ing,  why  may  not  homestead  protec-  this  sixty-five  acres  of  land,  and  about 
tion  be  extended  to  it?  a  bale  of  seed  cotton,  which  had  been 

1  Hogan  V.  Manners,  23  Kas.  551.  picked  therefrom,  and  was  lying  in 

2  Randal  v.  Elder,  13  Kas.  257.  the  field,  were  levied  on  by  a  con- 
'  Phillips  V.  Warner  (Tex.),  16  S.  W.  stable  by  virtue  of  an  alias  writ  of 

8 


114 


OWNEKSniP. 


A  leasehold  title,  to  a  homestead  enjoyed  by  husband  and 
wife,  may  be  such  as  to  require  the  signature  of  both  to  its 


execution  in  favor  of  J.  M.  Warner, 
appellee  herein,  against  the  appellant, 
for  the  sum  of  $141.25,  by  said  War- 
ner's express  direction,  and  on  the 
26th  September,  1887,  were  sold  at  a 
sum  greatly  less  than  their  value, 
which  appellee  received  the  benefit 
of.  That  appellant  claimed  his  cotton 
as  exempt,  both  at  the  time  of  the 
levy  and  sale.  Appellee  answered  by 
a  general  demurrer,  and  specially 
that  the  question  of  homestead  was 
raised,  which  the  county  court  had 
no  jurisdiction  to  hear  and  determine ; 
and  that  a  growing  crop  of  cotton  on 
a  homestead  is  not,  under  the  law, 
exempt  from  forced  sale.  He  further 
answered  by  a  general  denial,  and 
that  on  the  28th  January,  1886,  in 
the  justice  court,  appellee  recovered 
a  judgment  against  appellant  for 
$173.20,  and  on  14th  September,  1887, 
under  an  alias  execution,  the  prop- 
erty mentioned  in  plaintiff's  petition 
was  levied  on  and  sold  as  charged  by 
plaintiff.  Appellee  further  pleaded 
that  the  question  of  homestead  title 
and  right  was  raised,  and  the  county 
court  had  no  jurisdiction  to  determine 
the  case.  On  March  17, 1888,  there  was 
a  trial  resulting  in  a  verdict  and  judg- 
ment in  appellee's  favor.  A  motion 
for  a  new  trial  being  overruled,  ap- 
pellant brings  his  case  to  this  court. 
The  appellee's  plea  to  the  jurisdiction 
was  not  maintainable.  The  title  to 
land  was  not  involved  in  the  issue  to 
be  tried,  as  presented  in  plaintiff's  pe- 
tition. The  question  was  the  exemp- 
tion of  the  property  seized,  taken,  and 
converted.  Appellant  (plaintiff  below) 
did  not  own  the  land,  but  had  it  leased. 
The  court  below  appears  to  have  held 
that  a  leasehold  would  not  support 
a  homestead  and  exemption  claim, 
under  our  constitution  and  laws.    In 


Wheatley  v.   Griffin,    our    supreme 
court  says:  "The  great  current  of 
authority  is  to  the  effect  that  the 
homestead  right  will  attach  to  an 
equitable  estate,  an  estate  for  life,  or 
even  a  leasehold  interest.    The  au- 
thorities bearing  upon  this  subject 
are  given  in  sections  170-172, 174, 176, 
Thomp.  Homest.  &  Ex.,  and  these  au- 
thorities and  the  reasons  given  therein 
are  deemed  conclusive  of  this  ques- 
tion."   60  Tex.  209.    "  Crops  growing 
on  a  rural  homestead  are  exempt 
from  forced    sale.    The    exemption 
from  sale  of  the  homestead  itself  was 
to  enable  the  owner  to  support  him- 
self and  family,  and  this  object  would 
be  defeated  if  the  creditor  were  per- 
mitted to  seize  and  sell  the  growing 
crop."    Alexander  v.  Holt,  59  Tex. 
205 ;  Cobbs  v.  Coleman,  14  Tex.  598 ; 
1  Civil  Cas.  Ct  App.,  §  951 ;  2  Civil 
Cas.  Ct.  App.,  §  423.    The  court  erred 
in  not  submitting  to  the  jury  as  the 
law  of  this  case  the  special  charge 
asked  by  plaintiff,  which  is  as  fol- 
lows, viz. :  "  You  are  charged,  gentle- 
men of  the  jury,  that  a  homestead 
may  exist  in  a  leasehold  interest  in 
land  whether  that   interest  be  for 
twelve  months  or  more ;  and,  if  you 
believe  from  the  evidence  that  the 
plaintiff  therein  rented,  for  the  year 
1887,  the  land  on  which  the  gi'owing 
cotton  which  was  sold  under  defend- 
ant's execution  was  raised,  and  was 
only  a  tenant  on  said  land,  and  that 
said  land  was  the  homestead  of  him- 
self and  family  for  that  year,  and  oc- 
cupied as  such,  though  for  only  one 
year,  then  the  said  growing  crop, 
under  the  law,  would  be  exempt  as  a 
growing  crop  on  his  homestead,  not 
subject  to  sale  under  defendant's  exe- 
cution."   Judgment  is  reversed,  and 
cause  remanded. 


I.KASEIIOLD,  AND    VARIOUS    TITLES    TO    PARCELS.  115 

transfer.^  As  the  home  of  the  family,  the  leased  property  is 
subjected  to  tke  restraints  put  upon  homesteads  in  general, 
with  respect  to  incumbrance  or  alienation,  for  leasehold  title 
is  a  species  of  ownership  recognized  by  the  homestead  statutes, 
as  interpreted.^ 

The  right  of  a  lessee  cannot  be  disturbed  by  the  widow  of 
the  deceased  lessor  in  claiming  to  have  homestead  assigned 
her  out  of  the  property  held  by  him,  when  his  lease  has  not 
expired,  and  when  she  had  filed  no  claim  to  homestead  before  I 
the  death  of  her  husband,  the  lessor.'  But  she  may  become 
entitled  so  far  as  to  have  the  rents.* 

It  seems  needless  to  say  that  a  tenant  has  no  homestead,  as 
against  the  landlord,  after  his  lease  has  expired.* 

The  ownership  of  a  homestead  may  be  partly  under  one 
kind  of  title  and  partly  under  another.  The  beneficiary  may 
hold  his  dwelling-house  by  leasehold  and  a  garden  appurtenant 
by  freehold.  His  home  farm  may  be  half  held  in  fee  and  half 
under  life  tenure  —  the  whole  not  exceeding  the  monetary  or 
qualitative  limit,  where  there  is  either  restriction  or  both. 
Indeed,  every  species  of  title  may  exist,  each  in  relation  to  a 
different  part  of  the  homestead,  provided  the  owmer  has  the 
exclusive  right  of  possession  as  to  the  whole,  under  the  vari- 
ous titles  to  the  parts. 

If  the  beneficiary  has  his  family  home  on  a  leased  lot,  he 
may  acquire  an  abutting  lot  by  purchase,  and  use  both  as  his 
homestead,  within  the  prescribed  limitation.^ 

Homestead  under  different  titles  is  explained  in  the  follow- 
ing extract :  "  We  have  therefore,  as  postulates,  that  the  right 
to  homestead  exemption  does  not  depend  on  the  nature  of  the 
title,  or  the  degree  or  character  of  the  estate,  but  will  be  de- 
termined by  occupancy  and  uses  "  [coupled  with  the  title,  it 
should  be  said] ;  "  and  that  a  homestead  may  consist  of  two 

iPelan  v.  De  Bevard,  13  la.   53;  3  Shores  v.  Shores,  34  Mo.  App.  208. 

Morris  v.  Sargent,  18  la.  90.  <  J6, 

2  Hogan  V.  Manners,  23  Kas.  551 ;  5  Kuttner  v.  Haines,  35  IlL  App. 

Conkhn  v.  Foster,  57  111.  104 ;  Shores  307. 

V.  Shores,  34  Mo.  App.  208 ;  Johnson  e  Walters   v.   People,   18    HI.    194 ; 

V.  Richardson,  33  Miss.  462 ;  Pelan  v.  S.  C,  65  Am.  Dec.  730 ;  Englebrecht 

De  Bevard,  13  la.  53.     Compare  Col-  v.  Shade,  47  Cal.  627 ;  Tyler  v.  Jewett, 

well  V.   Carper,  15   O.  St.  279,   and  82  Ala.  93,  99 ;  Wassell  v.  Tunnah,  25  • 

Ellis  V.  Welch,  6  Mass.  251.  Ark.  101. 


116  OWNERSHIP. 

or  more  adjoining  pieces  of  land  so  connected,  occupied  and 
used  as  to  constitute,  in  contemplation  of  law,  one  tract.  The 
logical  and  obvious  consequence  is  that  it  is  not  essential  that 
the  several  lots  or  pieces  shall  be  held  by  the  same  title  or  the 
same  kind  of  title."  ^ 

The  dwelling-house  may  be  separately  described  in  a  deed, 
yet  constitute  a  part  of  the  homestead  belonging  to  the  free- 
hold.2 

§  5.  Life  Estate. 

The  holder  of  a  life  estate  may  have  a  homestead  carved 
out  of  it.  It  would  not  affect  the  case  if  the  life  title  were 
in  a  woman  while  the  remainder  is  in  the  children.  She  would 
be  entitled  to  claim  homestead  as  against  her  creditors,  if 
the  occupant  of  the  property  while  thus  claiming.'  Her  claim, 
in  such  case,  would  be  to  an  original  homestead,  against  her 
own  creditors ;  not  for  the  technical  widow's  homestead.  She 
would  claim  precisely  as  a  man  would,  under  similar  circum- 
stances. 

The  homestead  right  is  a  fee-simple  interest,  where  an  es- 
tate in  fee  supports  it ;  *  but  it  is  a  life  interest  when  supported 
by  a  life  estate,  and  there  is  no  inconsistency.^ 

The  "  estate  "  is  the  same  after  the  acquisition  of  the  home- 
stead character  as  it  was  before.  The  beneficiary  of  the  pro- 
tection accorded  does  not  obtain  any  additional  property 
right  from  the  state.  The  term  "  estate  of  homestead  "  is 
misleading  if  it  induces  the  public  to  think  that  additional 
property-title  of  any  sort  is  meant. 

As  already  remarked,  the  homestead  is  irrespective  of  the 
character  of  the  title  or  tenure  b}'^  which  the  beneficiary  holds 
it.  Yet  upon  appraisement  for  division  or  any  purpose,  the 
property-value  is  estimated  —  not  his  mere  interest.  For  in- 
stance, one  who  has  life  estate  in  property  w^orth  five  thousand 
dollars,  where  that  is  the  monetary  maximum  of  a  homestead, 
cannot  demand  that  sum  from  property  sold  as  an  entirety 

1  Tyler  v.  Jewett,  supra;  King  v.  3  Robinson  v.  Smithey,  80  Ky.  636 
Sturges,  56  Miss.  606 ;  Partee  v.  Stew-  *  Murdock  v.  Dalby,    13  Mo.  App, 
art,  50  Miss.  717 ;  Campbell  v.  Adair,  41 ;  Skonten  v.  Wood,  57  Mo.  380. 
45  Miss.  170 ;  Mosely  v.  Anderson,  40  5  /i,.;  Deere  v.  Chapman,  25  111.  498 
Miss.  54.  Potts  V.  Davenport,  79  111.  456 ;  State 

2  Lyle  V,  Palmer,  42  Mich.  314.  v.  Diveling,  66  Mo.  375. 


EQUITABLE    TITLE.  117 

He,  holding  life  estate  in  land  of  that  value,  had  not  an  inter- 
est worth  that  sum.     The  simple  value  is  estimated.^ 

This  rule  works  well  where  there  is  limitation  of  quantity. 
But  it  may  not  be  applicable  when  the  limitation  is  in  value 
only.  Where  the  measure  of  homestead  exemption  is  value  — 
not  quantity  —  the  beneficiary  has  been  held  entitled  to  the 
full  amount  though  his  title  be  a  life  estate;  not  limited  to 
the  value  estimated  as  though  the  title  were  in  fee.^  "  A 
homestead  right  in  an  estate  less  than  a  fee  is  not  as  valuable 
as  a  homestead  right  in  a  fee,  and  it  must  therefore  be  of  a 
correspondingly  greater  extent  territorially  in  order  to  effect 
an  equality  in  the  rights  of  the  respective  owners." '  This 
view  seems  to  be  exceptional  to  the  general  rule. 

§  6.  Equitable  Title. 

A  possessor  of  land  under  an  equitable  title  may  claim  home- 
stead thereon,  acquire  the  usual  immunities  and  subject  him- 
self to  the  same  disabilities  as  though  he  held  under  a  legal 
title.  He  may  have  mortgaged  it  before  dedication,  and  have 
nothing  left  in  him  but  the  right  of  redemption ;  he  may  have 
conveyed  by  trust  deed;  he  may  never  have  acquired  the 
property  except  under  a  title  bond  or  a  contract  to  purchase, 
and  yet  have  exclusive  right  of  possession  and  the  privilege  of 
dedicating  the  property  to  homestead  purposes  with  the  ac- 
companying exemption  and  restraints  —  subject  only  to  the 
paramount  right  of  the  mortgagee  or  vendor,  as  the  case  may 
be.  The  general  doctrine,  that  there  may  be  homestead  un- 
der an  equitable  title  with  exclusive  right  of  possession  is  es- 
tablished.* 

1  Brown  V.  Starr,  79  Cal.  608 ;  Spen-  Peay,  40  Ark.  69;  Blue  v.  Blue,  38 
cer  V.  Geissman,  37  Cal.  99 ;  Brooks  111.  9 ;  Tomlin  v.  Hilyard,  43  111.  300 ; 
V.  Hyde,  37  Cal.  366 ;  Arnold  v.  Jones,  Hartman  v.  Schultz,  101  111.  437 ; 
9  Lea,  545 ;  Franks  v.  Lucas,  14  Bush,  Kmgman  v.  Higgins,  100  111.  319 ; 
395.  McClure  v.  Braniff,  75  la.  38 ;  Hewitt 

2  Squire  v.  Mudgett,  63  N.  H.  71 ;  v.  Rankin,  41  la.  35;  Stinsonv.  Rich- 
N.  H.  Gen.  L,  ch.  138,  §§  1,  5.  ardson,    44    la.     373-5 ;     Caroon   v. 

3i6.  Cooper,    63    N.   C.    386;    Burton    v. 

<Canfield    v.    Hard,   58  Vt    217;  Spiers,   87  N.   C.   87;    Murchison  v. 

Doane  v.  Doane,  46  Vt.  485 ;  Fellows  Plyler,  87  N.  C.  79 ;  Creecy  v.  Pierce, 

V.  Dow,  58  N.  H.  21 ;  Norris  v.  Mor-  69  N.  C.  67 ;  Munro  v.  Jeter,  24  S.  C. 

rison,  45  N.  H.  490 ;  Searle  v.  Chap-  29 ;  Kirby  v.  Reese,  69  Ga.  452 ;  King 

man,  121  Mass.   19 ;    Rockafellow  v.  v.  Gotz,  70  Cal.  236 ;  Kennedy  v.  Nu- 


118  OWNERSHIP. 

Equitable  title  to  land,  used  as  a  homestead,  is  protected 
from  forced  sale,  but  there  must  be  the  right  of  possession, 
and  ownership  by  some  title.^  There  must  be  such  ownership 
as  to  render  the  property  susceptible  of  becoming  the  basis  .of 
the  homestead  right;  and  this  may  be  by  purchase  under 
bond,  with  possession.^  This  will  support  the  claim,  and  will 
subject  the  property  to  that  restraint  upon  alienation  which 
attends  homestead,  though  payment  has  not  been  fully  made.' 
The  rule,  with  respect  to  such  restraint,  is  the  same,  whether 
the  title  be  equitable  or  legal.* 

A  verbal  contract  to  j)urchas6^  accompanied  by  possession, 
has  been  deemed  sufficient  ownership  to  enable  the  possessor 
to  claim  the  right  of  homestead,  and  held  to  impose  disability 
to  convey  without  joinder  by  his  wife.*  And  a  contract  to 
purchase,  written  but  not  executed,  has  been  held  sufficient 
basis  for  the  homestead  right,^  though  this  is  not  universally 
admitted.^ 

Where  there  is  actual  occupancy  by  a  family,  though  the 
premises  be  not  owned  by  the  head  of  it  under  any  perfected 
title  whatever,  it  is  held  that  it  will  be  respected  as  a  home- 
stead if  there  be  a  contract  to  purchase.  The  reasoning  is 
that  as  equity  sometimes  considers  as  done  what  parties  have 
agreed  to  do ;  as  it  treats  the  contemplated  vendor  as  trustee 
of  the  title  for  the  vendee;  as  it  treats  the  contemplated 
vendee  as  trustee  of  the  purchase-money  for  the  vendor ;  as  it 
gives  the  same  effect  to  the  equitable  estate  thus  erected  that 
the  law  gives  to  the  legal  estate,  and  such  estate  goes  to  the 
vendee's  heirs  or  devisees  at  his  death, —  so  it  will  protect  an 
occupied  homestead,  under  contract  to  purchase,  against  alien- 
ation by  the  husband  without  his  wife's  consent.     And  the 

nan,  53  Cal.  326;  Smith  v.  Chenault,        3/^. 

48  Tex.  455 ;  McManus  v,  Campbell,        *  Wilder  v.  Haughey,  21  Minn.  101 

37  Tex.  269 ;  Wilder  v.  Haughey,  21  Hartman  v.  Munch,  21  Minn.  107. 

Minn.  101;  Threshing  Machine  Co.        5  McKee  v,  Wilcox,  11  Mich.  358 

V.  Mitchell,    74    Mich.   679 ;    Orr   v.  Fyfee  v.  Beers,  18  la.  11. 

Shraft,  22    Mich.   260 ;    Schreiber  v.        6  Bartholomew  v.  West,  2  Dill.  293 

Carey,  48  Wis.  215.  Moore  v.  Reaves,  15  Kas.  150 ;  McCabe 

1  Smith  V.  Chenault,  48  Tex.  455;  v.  Mazzuchelli,  13  Wis.  534;  Allen  v. 
McClure  v.  Braniff,  75  la.  38.  Hawley,  66  111.  164. 

2  Stinson  v.  Richardson,  44  la.  373-  ^  Garity  v.  Du  Bose,  5  S.  (J.  493.  See 
875.  Jenkins  v.  Harrison,  66  Ala.  345. 


EQUITABLE    TITLE.  119 

wife  may  perform  the  contract,  on  the  husband's  neglect  to 
do  it,  just  as  she  may  redeem  a  mortgage  to  save  her  right  of 
dower.^ 

But  a  contract  purchaser  cannot  claim  homestead  rights  in 
land  which  he  has  deeded  to  another  purchaser  on  completing 
his  own  payments.^ 

Equity  of  redemption  is  held  suflBcient.  The  mortgagor,  in 
possession,  holds  his  property  exempt  from  other  debts  than 
that  secured  by  the  mortgage.  He  has  the  right  of  redeem- 
ing it  from  that  incumbrance,  not  necessarily  by  means  of  the 
homestead  (which  is  primarily  bound  for  the  mortgage  debt), 
but  by  any  other.  His  homestead  right  is  in  the  land,  there- 
fore, rather  than  in  his  redemption  right ;  but  it  is  held  that 
the  homestead  right  may  be  supported  by  an  equity  of  re- 
demption.^ This  is  true  as  to  the  general  creditor,  after  mort- 
gage by  himself  and  wife  with  release  of  the  homestead  right.* 
If  he  remains  in  possession  as  trustee  of  the  mortgagee,"  no 
one  can  complain  that  the  debtor  holds  no  title  beyond  the 
right  to  redeem.  The  mortgagee  is  secured,  and  other  cred- 
itors cannot  disturb  the  household  for  the  personal  debts  of 
its  head,  under  the  circumstances,  when  the  debts  were  con- 
tracted subsequent  to  the  acquisition  of  the  homestead  im- 
munity. 

A  mortgage  deed  duly  executed  to  secure  a  debt,  conveying 
the  land  on  which  the  homestead  rests,  leaves  no  right  in  the 
grantor  or  grantors  but  that  of  redemption ;  and  if  they  never 
redeem  there  is  nothing  to  which  the  homestead  right  can  at- 
tach.^ If  homestead  is  taken  after  the  giving  of  such  deed, 
there  would  be  no  defense  to  an  action  of  ejectment  brought 
on  the  deed.'^    But  if  the  grantors  remain  in  possession,  cred- 

iMcKee  v.  Wilcox,  11  Mich.  358.  41  Vt.  398;  88  Mo.  222;  distinguish- 

2  Fairbairn  v,  Middlemiss,  47  Mich,  ing  Casebolt  v.  Donaldson,  67  Mo. 
372.  Under  a  partly  paid  certificate  308 ;  and  overruling  State  v.  Mason, 
of  purchase  of  school  land  in  Mich-  15  Mo.  Ap.  141, 

igan,  homestead  right  was  success-  i  Fellows  v.  Dow,  58  N.  H.  31 ;  Nor- 

fully  claimed.    Allen  v.  Caldwell,  55  ris  v.  Morrison,  45  N.  H.  490. 

Mich,  8.  s  Threshing  Machine  Co.  v.  Mitch- 

3  Fellows    V.   Dow,   58    N.   H.   21 ;  ell,  74  Mich.  679. 

Creecy  v.  Pierce,  69  N.  C.  67 ;  Cheat-        «  Kirby  v,  Reese,  69  Ga.  452.    See 
bam  V.  Jones,  68  N,  C.  153 ;  Doane  v.     Moore  v.  Frost,  63  Ga.  296, 
Doane,  46  Vt  485 ;  Morgan  v,  Stearns,         ■  Thaxton  v.  Roberts,  66  Ga.  704 


120  OWNERSHIP. 

itors  other  than  the  grantee  cannot  disturb  him.  They  can- 
not execute  their  judgment  by  selling  the  right  of  redemption 
while  the  homestead  right  exists. 

This  is  from  the  doctrine,  already  enunciated,  that  equity 
of  redemption  is  title  sufficient  to  support  homestead.  Though 
property  may  be  heavily  burdened  with  trust  debts,  the  equi- 
table estate  is  not  destroyed.^  Homestead  is  analogous  to 
dower  which  may  be  given  in  an  equity  of  redemption  or  other 
trust  estate ;  -  or  rather,  in  land  held  under  such  right.  One 
cannot  live  in  a  mere  equity ;  the  home  cannot  be  in  any  right ; 
it  is  in  realty  which  may  be  supported  by  equitable  title  only. 

After  one  has  given  a  trust  deed  upon  community  land  to 
secure  a  debt,  he  has  enough  interest  remaining  to  enable  him 
to  make  a  valid  claim  of  homestead,*  because  he  yet  has  an 
interest  susceptible  of  being  sold  under  execution,*  in  the  ab- 
sence of  homestead  protection.  That  is,  if  he  is  in  possession 
of  the  tangible  property.  If  his  interest  is  intangible  —  a  mere 
right  of  some  sort  subject  to  execution  but  not  susceptible  of 
habitation,  he  may  have  exemption  accorded  him,  but  home- 
stead in  it  would  be  impossible. 

Exemption  applies  to  the  equitable  interest  which  the  family 
have  in  the  homestead,  but  homestead  exemption  to  real  prop- 
erty on  which  that  interest  is  based,  so  that  the  legal  owner's 
merely  personal  obligations  cannot  be  enforced  against  the 
property.  This  exemption,  after  his  death,  continues  in  favor 
of  those  who  remain  as  beneficiaries  of  the  equitable  estate: 
that  is,  his  widow  and  minor  children.  If  the  property  is 
within  the  monetary  exemption  limit,  there  is  nothing  for  the 
administrator  to  sell  on  the  death  of  the  legal  owner.^ 

§  7.  Titles  of  Husband  and  Wife. 

The  husband  and  wife  are  as  one  in  the  holding:  of  the 
homestead.   Neither  can  have  title  in  it  adversely  to  the  other. 

1  Burton   v.   Spiers,   87  N.   C.   87 ;  *  Kennedy  v.  Nunan,  52  Cal.  326. 
Murchison  v.  Plyler,  87  N.  C.  79,  82:  SHartman  v.  Schultz,  101  III.  437; 
Cheatham  v.  Jones,  68  N.   C.    153;  Conklin  v.  Foster,  57  111.   104;  Bur- 
Crummen  v.  Bennett,  68  N.  C.  494.  sen  v.  Goodspeed,  60  111.  277 :  Wolf 

2  Creecy  v.  Pearce,  69  N.  C.  67 ;  Ca-  v.  Ogden,  66  lU.  224 ;  Hartwell  v. 
roon  V.  Cooper,  63  N.  C.  386.  McDonald,  69  111,  293 ;  Kingman  v. 

3  King  V.  Gotz,  70  Cal.  236.  Higgins,  100  III  319. 


TITLES    OF    HUSBAND    AND    WIFE.  121 

Thus,  if  the  husband  lease  it  without  her  concurrence,  the 
tenant  cannot  set  up  possession  against  her.^ 

The  equitable  interest  may  be  in  the  husband ;  the  legal,  in 
the  wife :  yet  the  homestead  may  satisfy  all  the  requirements 
necessary  to  exempt  it  from  forced  sale ;  ^  and  the  titles  are 
not  adverse. 

When  the  husband  makes  a  declaration  of  homestead  upon 
his  separate  property,  he  creates  a  joint  title  thereto  in  him- 
self and  wife.  And,  to  convey  or  incumber  it  thereafter,  both 
must  join." 

There  seems  to  be  no  obstacle  to  the  holding  of  a  home- 
stead in  joint  tenancy  when  the  husband  and  wife  are  the  only 
joint  tenants ;  and  some  of  the  courts  go  even  farther.* 

The  joint-title,  created  by  the  husband's  declaration  of  home- 
stead upon  his  separate  property,  is  merely  a  title  to  estate  of 
homestead  —  not  to  the  realty  itself,  as  a  general  rule.  The 
husband  conveys  no  land  to  his  wife  by  declaring  homestead ; 
he  lets  her  in  to  equal  control  as  to  alienation,  and  equal  right 
to  enjoyment,  and  to  that  protection  which  the  law  gives  to 
all  homestead  holders.  But  when  the  state's  purpose,  rel- 
ative to  homestead  conservation,  has  been  accomplished,  the 
land  title  is  as  before.  Wherever  a  different  result  obtains, 
there  is  exception  to  the  general  rule. 

The  family  head  may  have  homestead  right  in  property  be- 
longing to  his  wife ;  or,  at  her  death,  upon  becoming  tenant 
by  curtesy,  he  may  hold  his  home  exempt  under  that  title. 
And  it  is  held  that  he  may  then  convey  his  interest  free  from 
creditors'  claims."* 

1  Mauldin  v.  Cox,  67  Cal.  387 ;  First  mont,  54  Cal.  498 ;  Flege  v.  Garvey, 
N.  Bank  v.  De  la  Guerra,  61  Cal.  109 ;    47  Cal.  375. 

Frink  v.  Alsip,  49  Cal.  103.  <  Cleaver  v.  Bigelow,  61  Mich.  47 ; 

2  0rr  V.  Shraft,  32  Mich.  360;  Mur-  Tharp  v.  Allen,  46  Mich.  389;  Sher- 
ray  v.   Sells,   53  Ga.   257 ;  Crane  v.  rid  v.  Southwick,  43  Mich.  515 ;  Lozo 
Waggoner,  33  Ind.   83;    Dwinell  v.  v.  Sutherland,  38  Mich.  168. 
Edwards,  33  O.  St.  603.  fi  Kendall  v.  Powers,  96  Mo.   143; 

3  Burkett  v.  Burkett,  78  CaL  310 ;  Davis  v.  Land,  88  Mo.  436 ;  Moore  v. 
Barber  v.  Babel,  36  Cal.  14 ;  Tipton  Ivers,  83  Mo.  29 ;  Stephens  v.  Hume, 
V.  Martin,  71  Cal.  335 ;  Graves  v.  35  Mo.  349 ;  Keyte  v.  Peery,  25  Mo. 
Baker,  68  Cal.  133 ;  Porter  v.  Chap-  App.  394 ;  Reaume  v.  Chambers,  22 
man,  65  Cal.  365 ;  Gagliardo  v.  Du-  Mo.  36 ;  1  Wash.  Real  Prop.,  129. 


122  OWNERSHIP. 

As  a  general  rule,  homestead,  granted  on  application  of 
either  spouse,  will  avail  the  other.  But  it  has  been  held  that 
a  homestead  granted  on  appHcation  of  a  married  woman, 
without  stating  out  of  whose  property  it  is  to  be  carved,  will 
not  avail  her  husband  against  his  creditors.  However,  if  both 
spouses  occupy  the  premises  sought  to  be  dedicated,  and  he  is 
the  owner  and  knows  of  her  application  and  makes  no  objec- 
tion, he  and  his  heirs  will  be  bound  by  the  granting  of  her 
application.^  It  would  secure  a  life  estate  to  her  in  her  hus- 
band's separate  property,  but  would  have  ultimately  no  effect 
on  the  title  of  his  heirs.^  She  should  make  it  appear  whether 
the  property  to  be  dedicated  is  separate  or  community  prop- 
erty. Especially  is  this  necessary  where  the  law  does  not 
allow  her  to  declare  upon  her  separate  property.^ 

The  homestead  may  be  upon  land  one  part  owned  by  the 
husband  and  another  part  by  the  wife,  yet  be  exempt  as  a 
whole.  It  is  a  matter  of  indifference  whether  it  be  owned  by 
the  one  or  the  other,  or  by  both  together,  or  by  each  in  parcels.* 
But  if  the  wife  holds  the  title,  and  the  husband  an  interest, 
that  will  not  prevent  creditors  from  executing  the  husband's 
interest  in  collecting  their  claims  against  him,  antedating  the 
acquisition  of  the  homestead  —  his  interest  being  considered 
an  equitable  asset.*  And  even  the  wife's  separate  contribution 
may  be  liable.^ 

1  Linch  V.  Mclntyre,  78  Ga,  209 ;  he  applies :  the  property  being  pre- 
Coffee  V.  Adams,  65  Ga.  347.  Grounds  sumably  his.  Bechtoldt  v.  Fain,  71 
of  application  should  be  set  forth,  Ga.  495 ;  Langford  v.  Driver,  70  Ga. 
under  the  Georgia  constitution  of  588 ;  McWilliams  v.  Mc Williams,  68 
1877 ;  ownership  of  the  property  Ga.  459.  The  wife  was  allowed  home- 
should  be  stated  if  married  woman  stead  when  she  had  averred  that  her 
is  applicant.  Wilder  v.  Frederick,  husband  refused  to  make  applica- 
67  Ga.  669;  Clark  v.  Bell,  67  Ga.  tion.  Long  v.  Bullard,  59  Ga.  355. 
728 ;  Jones  v.  Crumley,  61  Ga.  105.  But  when  granted  on  her  application, 

2  Gruwell  v.  Seybolt,  82  Cal.  7.  it  will  not  be  in  the  way  of  a  prior 

3  In  Georgia,  where  a  married  deed  given  by  her  husband  to  secure 
woman  cannot  take  homestead  from  debt.  West  v.  Bennett,  59  Ga.  507. 
her  separate  property  while  she  lives  *  Lowell  v.  Shannon,  60  la.  713 ; 
with  her  husband,  it  is  necessary  for  Wilson  v.  Cochran,  31  Tex.  680 ;  Wil- 
her  to  state  from  whose  property  the  lis  v.  Matthews,  46  Tex.  478. 
homestead  is  to  be  set  apart  when  5  Croup  v.  Morton,  49  la.  16,  and  58 
she  makes  application  for  homestead.  la.  599. 

The  husband  need  not  so  state  when        «  Hamill  v.  Henry,  69  la.  753. 


TITLES    OF   HUSBAND   AND   WIFE.  123 

The  home  is  rightfully  to  be  enjoyed  equally  by  husband  and 
wife,  though  the  title  be  in  one  of  them.^ 

The  legal  title  of  property  may  be  conveyed  from  husband 
to  wife,  though  the  homestead  right  is  in  it.  Both  together 
have  the  estate  of  homestead,  before  and  after  the  convey- 
ance. The  transfer  of  the  legal  title,  from  one  to  the  other, 
does  not  affect  it.  It  is  not  as  though  both  should  join  in  con- 
veying it  to  a  stranger,  which  would  destroy  the  homestead 
estate.  In  transferring  to  each  other,  their  children's  home  is  j 
not  molested;  in  joining  to  transfer  to  a  stranger,  the  chil- 
dren's home  is  lost.^ 

Creditors  are  not  affected  by  the  conveyance  of  the  home- 
stead from  the  debtor  to  his  wife.  It  is  not  the  conveyance 
which  prevents  them  from  collecting  the  debts  due  them  from 
the  property :  it  is  the  statute.'' 

One  who  has  declared  a  homestead  on  his  own  property 
may  convey  it  to  his  wife  without  her  signature.  The  object 
of  requiring  both  to  join,  in  abandoning  or  conveying  to  others, 
is  to  protect  her.^  Such  conveyance  does  not  affect  the  family 
right  of  security :  husband,  wife  and  children  have  the  same 
protection  as  before.  But  the  title  is  in  her :  so,  in  case  of 
divorce,  she  becomes  sole  owner  with  exclusive  possession,  as 
to  him.^ 

The  husband  cannot  convey  his  wife's  title  in  their  home- 
stead ;  his  illegal  attempt  to  do  so  cannot  affect  her  interest, 
if  the  homestead  is  upon  community  property,  for  instance.* 
For,  though  the  civil  law  rule  is  that  the  husband,  as  head  of 
the  community,  may  convey  it,  as  representing  the  rights  and 

1  Sanford  v,  Finkle,  112  HI.  146.  as  the  property  did  not  exceed  $1,000 

2  Milwaukee  Ins.  Co.  v,  Ketterlin,  in  value,  under  the  case  of  Leupold 
24  III  A  pp.  188;  Green  v.  Farrav,  53    v.  Krause,  95  111.  440." 

la.  426 ;  Riehl  v.   Bingeuheimer,  28  ^  Burkett  v.  Burkett,  78  Cal.  310 ; 

Wis.  84 ;  Irion  v.  Mills.  41  Tex.  310 ;  Riehl  v.  Bingeuheimer,  28  Wis,  86 ; 

Shepard  v.  Brewer,  65  III  383 ;  Clubb  Baines  v.  Baker,  60  Tex.  140 ;  Spoon 

V.  Wise,  64  111.  157.  v.  Van  Fossen,  53  la.  494 ;  Green  v. 

3  Boyd  V.  Barnett,  24  111.  App.  199.  Farrar,  53  la.  426;  Harsh  v.  Griffin, 
It  is  said  in  this  case :  "  Even  if  we  72  la.  608 ;  Ruohs  v.  Hooke,  3  Lea 
had  found  that  the  sale  .  .  .  was  (Tenn.),  302 ;  Piatt's  Rights  of  Mar- 
made  with  the  intent  to  defraud  the  ried  Women,  g  70. 

complainant  as  alleged  in  the  bill,        ^  Burkett  v.  Burkett,  78  Cal.  310. 
still  the  conveyance  would  be  good,        ^  Whetstone  v.  Coffey,  48  Tex.  269. 


124  OWNERSHIP. 

interests  of  both,  there  is  an  exception  when  homestead  has 
been  declared  upon  it  —  a  state  of  things  which  the  civilians 
never  contemplated. 

A  constitutional  provision  which  secures  to  a  married  woman 
the  property  she  owns  at  the  time  of  her  marriage,  or  which 
she  subsequently  acquires,  and  exempts  it  from  liability  for 
her  husband's  debts,  and  gives  her  sole  disposition  of  it  free 
from  her  husband's  control,  is  not  so  much  to  declare  affirm- 
atively her  rights  as  to  negative  those  of  her  husband  and 
his  creditors.  Her  legal  stahis  as  a  wife  is  not  changed.^  Her 
personal  earnings  belong  to  her  husband  still,  according  to  the 
rule  of  the  common  law,^  and  therefore  land  bought  with  them 
is  considered  as  purchased  with  the  husband's  money,  and 
given  to  the  wife  by  him  in  disregard  of  the  rights  of  cred- 
itors to  the  money.  In  such  case,  there  is  no  resulting  trust 
to  him,  for  he  intended  a  gift  to  his  wife.  He  has  no  estate 
in  the  property  —  not  even  an  equitable  one  —  and  therefore 
cannot  claim  homestead  in  it.' 

The  ownership  of  a  homestead  must  be  by  such  title  as  to 
give  the  proprietor  an  assignable  interest,  if  his  widow  is  to 
take  it  at  his  death  as  the  homestead.  If,  before  his  marriage, 
the  owner  conveys  title  to  his  lands  and  then  lives  upon  them 
as  a  tenant  during  his  married  life,  his  widow  has  no  claim  to 
the  widow's  homestead  therein.^  She  may  live  on  the  home 
place  under  the  leasehold  title,  till  the  lease  expire,  if  it  has 
some  time  to  run  at  his  death,  unless  the  rights  of  others  in- 
tervene. 

The  heirs  of  a  wife  who  had  died  before  her  husband  of- 
fered to  prove  that  her  estate  was  insolvent,  to  support  their 
claim  to  two  hundred  acres  of  land  as  her  homestead.  As  it 
had  not  been  shown  that  either  she  or  her  husband  had  title 
to  the  land  at  the  time  of  her  death,  the  testimony  was  ex- 
cluded. Though  the  husband  and  his  family  had  occupied  it, 
he  had  accepted  a  conveyance  of  it  subsequent  to  her  death, 

1  Bridges  v.  Howell,  27  S.  C.  425 ;  2  Story  Eq.  Jur.,  g§  1202,  1204.  And 
TowDsend  v.  Brown,  16  S.  C.  96 ;  Pel-  on  homestead  in  equitable  estate. 
zer  V.  Campbell,  15  S.  C.  596.  Munro  v.  Jeter.  24  S.  C.  29. 

2  Syme  v.  Riddle,  88  N.  C.  463.  *  Berry  v.  Dobson  (Miss.),  10  So.  45 ; 

3  lb.;  citing  Hill  on  Trustees,  91 ;  Miss.  Code  1880,  §  1248. 


MUTUAL    INTEREST   OP^    HUSBAND    AND    WIFE.  125 

thus  raising  the  presumption  that  title  was  in  the  grantor  at 
the  date  of  the  deed.^ 

§  8.  Mutual  luterest  of  Husband  and  Wife. 

A  dwelling-house  and  the  ground  on  w^hich  it  stands  may 
each  be  worth  the  amount  of  the  statutory  exemption,  and 
one  may  be  owned  by  the  husband  and  the  other  by  the  wife. 
Where  no  formal  selection  and  recordation  are  required,  and 
the  two  estates  are  enjoyed  together  by  the  married  couple, 
are  they  in  condition  to  defeat  a  forced  sale  of  either  prop- 
erty? If  the  husband  is  the  owner  of  the  house,  may  he  claim 
it  as  exempt  in  case  a  judgment  be  rendered  against  him  and 
execution  be  directed  against  it?  At  the  same  time,  in  case  a 
judgment  be  rendered  against  her  and  the  land  be  levied 
upon,  may  she  claim  that  as  exempt  and  defeat  the  execution? 

Certainly  this  family  cannot  be  entitled  to  two  homesteads, 
nor  can  it  play  the  double  part  suggested.  Either  he  alone, 
as  the  head  of  the  family,  may  claim  homestead  right  for  both 
in  the  house  which  he  owns  and  in  which  both  live,  and  which 
is  worth  the  whole  amount  of  the  exemption,  or  she  alone 
may  claim  it  in  her  land.  If  he  neglects  or  refuses  to  claim 
till  the  house  be  levied  upon,  but  retains  his  right  to  claim  at 
any  time,  will  this  preclude  the  wife  from  setting  up  exemp- 
tion right  in  the  land  to  defeat  an  execution  already  laid? 

It  would  seem  that,  under  the  circumstances,  the  husband 
would  be  the  "householder"  and  "occupant"  within  the 
•  meaning  of  those  words  as  used  in  the  constitutions  and  stat- 
utes according  the  homestead  right ;  and  that  the  wife  has  no 
right  to  claim  except  what  she  derives  from  him,  for  the  bene- 
fit of  the  family  of  which  he  is  the  head.  But  it  has  been 
held,  under  circumstances  such  as  above  suggested,  that  she 
may  resist  execution  against  the  land  by  claiming  homestead 
in  it.2 

1  Holloway  v.  Mcllhenny,  77  Tex.  levied  upon  by  some  one  else  for  his 
657.  debt"  Was  it  not  pertinent  for  them 

2  KJruger  v.  Le  Blanc,  75  Mich.  424.  to  inquire  whether  his  right  to  claim 
The  value  of  the  building  owned  by  the  family  homestead  protection  ex- 
the  husband  was  not  ascertained,  isted  at  the  very  moment  when  his 
The  court  said  :  "  It  is  of  no  concern  wife  was  seeking  to  defeat  their  levy 
to  these  defendants,  what  he  [the  hus-  by  setting  up  her  right  to  do  so? 
band]  might  do  if  his  property  were  Since  it  is  certain  that  the  husband 


126  OWNERSHIP. 

If  this  husband  and  wife  had  been  joint  owners  of  both  the 
house  and  the  land,  they  could  not  have  had  two  homes  pro- 
tected; and  it  is  as  irregular  to  have  two  properties,  either 
susceptible  of  being  claimed  when  danger  comes.  The  law  is 
generous  towards  families  but  does  not  contemplate  a  game 
of  hide-and-seek  when  the  sheriff  comes.  Being  separate  own- 
ers, the  case  is  clearer  —  they  could  not  have  a  homestead 
apiece. 

There  is,  however,  as  much  reason  in  allowing  marital  joint- 
owners  to  have  two  homesteads  as  in  permitting  unmarried 
ones  to  have  them ;  and  it  has  been  decided  that  joint-owners 
who  have  not  the  relation  of  man  and  wife,  if  each  has  a  sep- 
arate house  on  the  joint  premises,  and  occupies  it  as  the  home 
of  himself  and  his  family,  will  be  entitled  to  homestead  ex- 
emption —  each  to  the  full  maximum.'  The  general  rule  is 
that  there  must  be  exclusive  right  of  possession ;  and  this  can- 
not be  by  unmarried  owners  in  joint  tenancy.  The  decision 
last  cited,  and  similar  ones,  are  to  be  understood  with  refer- 
ence to  exemption.  The  interest  of  each  joint  tenant  doubt- 
less may  be  exempted  to  the  amount  of  the  homestead  max- 
imum of  value,  under  the  governing  statute. 

§  9.  Title  Toid  or  Fraiidiilent. 

The  ownership  required  must  be  valid  in  law.  There  is  no 
public  policy  in  favor  of  conserving  fraudulent  homes.  True, 
the  statutes  make  no  distinction  between  honest  men  and 
rogues  when  providing  who  may  be  beneficiaries  of  exemp- 
tion ;  but  the  thing  exempted  must  be  honestly  owned  by  the 
beneficiary  in  whose  name  the  privilege  is  granted  —  that  is, 
the  head  of  the  family  who  represents  the  other  beneficiaries 
of  his  household. 

The  existence  of  liens  does  not  affect  the  ownership  so  far 
as  the  requirement  of  the  condition  is  concerned.     An  incum- 

and  wife  could  not  claim  two  home-  husband's  house,  occupied  by  both 

Bteads  for  their  one  family,  was  it  not  himself  and  his  wife  as  their  home, 

pertinent  for  the  defendants  to  show  according  to  the  rule  prevailing  in 

that  her  claim  was  inconsistent  with  other  states.    If  it  was  worth  less  than 

his  right?    Husband  and  wife  cannot  $1,500,  the  wife's  land  may  have  been 

have    a    homestead   apiece.      Gam-  exempt  in  such  quantity  as  to  make 

bette  V.  Brock,  41  Cal.  84.   The  home-  up  the  maximum. 

stead  of  the  Michigan  case  was  the  ^  Meguiar  v.  Burr,  81  Ky.  Z2. 


TITLE    VOID    OR    FRAUDULENT.  127 

brance  may  be  as  great  as  the  value  of  the  property  incum- 
bered, yet  the  ownership  remain  all  that  is  required.  The 
owner  may  not  have  paid  for  the  property.  Ownership  does 
not  depend  upon  the  price  having  been  paid.  The  grantor 
has  his  lien;  but  other  creditors  are  powerless  to  proceed 
against  the  property  —  just  as  they  would  be  if  the  debtor 
did  not  owe  a  dollar  upon  it.^ 

The  purchase,  however,  must  have  been  an  honest  and  hon- 
orable one,  not  made  to  defraud  creditors,  if  the  condition  of 
ownership  is  to  be  considered  accordant  to  law. 

Certain  merchants  bought  goods  on  credit,  exchanged  them 
for  a  house  and  lot,  and  then  sought  to  hold  such  real  estate 
as  a  homestead  against  the  creditors  of  whom  they  had  pur- 
chased the  goods.  They  had  nothing  else  to  which  the  cred- 
itors could  look  for  payment. 

The  statute,  under  which  the  homestead  was  claimed  by 
one  of  the  merchants  who  occupied  the  house  and  lot  with  his 
family,  contained  the  inhibition:  "A  homestead  shall  not  be 
subject  to  forced  sale  on  execution  or  any  other  final  process 
from  a  court."  It  had  been  contended  by  counsel  that  this 
inhibition  covered  such  a  case  as  the  one  at  bar;  but  the  court 
said :  "  If  such  a  construction  of  the  law  as  is  contended  for 
in  this  case  should  prevail,  its  title  should  read,  '  An  act  for 
preventing  the  payment  of  honest  debts,  and  for  the  promo- 
tion of  frauds  upon  creditors  by  debtors.'  .  .  .  The  de- 
fendants were  merchants,  in  possession  of  a  stock  of  goods, 
and  in  that  character,  and  under  those  circumstances,  replen- 
ished their  stock  by  the  purchase  of  goods  of  the  plaintiffs 
upon  credit.  After  acquiring  possession  of  the  goods  so  pur- 
chased, they  transferred  their  whole  stock  in  fraud  of  their 
creditors,  and  took  in  exchange  therefor  these  premises.  The 
mere  statement  of  the  facts  decides  this  case  in  the  conscience 
of  every  honest  man:  that  neither  in  law  nor  justice  the  ex- 
emption should  be  allowed.  The  defendants  cannot  expect  the 
court  to  assist  them  in  consummating  the  intended  fraud.  A 
party  cannot  turn  that  which  is  granted  him  for  the  comfort 
of  himself  and  family  into  an  instrument  of  fraud.  ...  A 
defendant  cannot  expect  this  court  to  consent  that  he  may 

1  Lee  V.  Welborne.  71  Tex.  500. 


128  OWNERSHIP. 

use  the  law  as  an  instrument  of  fraud  by  claiming  a  home- 
stead which  he  has  fraudulently  acquired  in  the  manner  pre- 
sented in  this  case.     .     .     ."  ^ 

This  view  of  a  fraudulently  acquired  homestead  is  also  taken 
in  another  case.  The  strong  language  of  the  court  above 
given  is  approvingly  quoted  in  the  latter:  "  The  mere  state- 
ment of  the  facts  decides  the  case  in  the  conscience  of  every 
honest  man.  The  defendants  cannot  expect  the  court  to  assist 
them  in  consummating  the  intended  fraud."  But  distinction 
was  drawn  between  "intended  fraud,"  and  the  transfer  of 
goods  for  a  farm  (under  almost  precisely  similar  circumstances 
to  those  above  related),  from  which  the  court,  in  the  case  now 
under  consideration,  did  not  infer  fraud.  Though  the  goods 
had  been  bought  upon  credit,  and  were  exchanged  for  forty 
acres  of  land,  and  the  land  then  claimed  as  a  homestead  against 
the  creditors  who  had  furnished  the  goods ;  and  though  the 
debtor  was  insolvent  and  knew  himself  to  be  so  when  he  made 
the  exchange ;  and  though  his  homestead  exemption  could  be 
allowed  only  at  the  expense  of  his  creditors,  the  court  deemed 
its  acquisition  not  fraudulent  on  the  following  reasoning: 
"  We  know  of  no  rule  of  law  in  this  state  that  deprives  a  per- 
son, whose  indebtedness  may  be  equal  to  or  exceed  his  re- 
sources, from  taking  a  part  of  his  property  to  purchase  a 
homestead.  This  is  not  fraud  upon  creditors.  It  is  not  a  con- 
cealment of  his  property.  He  merely  puts  the  property  into 
a  shape  in  which  it  will  be  the  subject  of  beneficial  provision 
for  himself  and  his  family,  which  the  law  recognizes  and  allows ; ' 
and  such  property  having  all  the  requisites  of  a  homestead  as 
to  ownership,  value  and  occupancy,  it  will  be  held  exempt 
from  levy  and  sale  on  execution  by  his  creditors."  ^ 

This  decision  is  not  that  a  fraudulently  acquired  homestead 
has  the  essential  condition  of  ownership  to  support  it,  but 
that  the  homestead  in  question  was  not  thus  acquired.  The 
opinion  seeks  to  distinguish  the  facts  of  this  case  from  those 
of  the  one  preceding,  by  finding  a  different  intention  on  the 
part  of  the  debtor.  The  reader  of  the  two  recitals  in  the  re- 
ports may  not  discover  this  difference,  but  since  it  was  drawn, 
he  cannot  understand  this  decision  as  contrary  to  the  former. 

1  Pratt  V.  Burr,  5  Biss.  36.  2  Meigs  v.  Dibble,  73  Mich.  101,  lia 


TITI>E    VOID    Oil    FRAUDULENT.  129 

It  is  said,  indeed,  in  the  latter:  "  This  is  a  very  different  case 
from  one  where  the  party  obtains  property  on  credit  with  the 
intention  at  once  to  place  it  beyond  the  reach  of  creditors  by 
exchange  of  the  whole  for  a  homestead.  Such  a  proceeding 
would  be  evidence  of  a  fraudulent  intent  in  the  purchase  of 
the  property  at  the  outset,  and  the  case  would  fall  within  the 
ruling  of  the  court  in  " — the  case  first  cited  on  this  ])oint.' 

That  the  debtor  knew,  when  he  bought  the  forty  acres  for 
a  homestead,  that  he  did  so  by  exchanging  the  goods  therefor 
at  the  expense  of  his  creditors,  is  plain  enough;  and  that 
the  transaction  was  fraudulent  seems  clear  enough;  but  the 
court,  while  holding  that  the  fraudulent  acquisition  of  a  home- 
stead is  not  a  compliance  with  the  condition  of  ownership,  in- 
ferred from  the  facts  that  the  exchange,  in  this  case,  was  not 
in  fraud.  If  the  debtor  did  not  have  a  fraudulent  intention 
when  he  bought  the  goods,  but  did  have  it  when  he  exchanged 
them  for  the  land,  there  would  seem  to  have  been  a  fraudulent 
acquisition  of  the  homestead. 

Putting  property  not  exempt  into  property  exempt  is  not 
technically  a  concealment  of  it,  but  it  is  the  placing  of  it  be- 
yond the  reach  of  creditors,  which  is  virtually  the  same. 

The  cases  cited  to  sustain  the  position  that  there  was  no 
fraud  do  not  seem  in  point.  The  first,  containing  some  ob- 
servations on  the  subject  which  were  not  necessary  to  the 
decision,  is  that  an  insolvent  debtor  may  exchange  notes  ante- 
dating the  dedication  of  his  homestead  (and  therefore  bearing 
upon  it),  for  notes  post-dating  it  (and  therefore  not  bearing 
upon  it),  with  the  consent  of  the  Gredltors  holding  the  notes  which 
have  not  gone  into  third  hands.'^  No  fraud  in  that,  surely. 
The  second  case  is  one  of  chattel  exemption.  The  court 
thought  it  no  fraud  in  an  insolvent  debtor  to  exchange  prop- 
erty not  exempt  for  a  yoke  of  oxen  exempt,  "  with  the  intent 
to  defeat  the  claims  of  creditors."  ^  This  would  seem  to  over- 
look the  distinction  as  to  the  fraudulent  intent  made  by  the 
court  when  citing  this  authority  from  the  reports  of  its  own 
state. 

1  That  is,  in  Fratt  v.  Burr,  swpra,  2  Tucker  v.  Drake,  1 1  Allen,  145. 
cited  by  the  court  in  this  connection,  {See  Adams  v.  Jenkins,  16  Gray,  146.) 
in  Meigs  v.  Dibble,  73  Mich.  112.  3  O'Donnell  v.  Segai-,  25  Mich.  367, 

376. 
9 


130  OWNERSHIP. 

Often  there  is  question  whether  property  has  been  acquired 
honestly  or  fraudulently ;  and  the  subject,  so  far  as  it  concerns 
homesteads,  is  relegated  to  a  future  chapter  on  fraud.  The 
proposition  now  is  that  the  ownership,  required  as  one  of  the 
conditions  to  homestead  privileges,  must  be  real,  legal,  free 
from  fraud  in  its  acquisition.^  Certainl}^  property  claimed  as 
a  homestead  cannot  be  treated  as  such  against  one  from  whom 
it  was  acquired  by  defrauding  him.  Under  such  circum- 
stances, its  conveyance  does  not  require  the  signature  of  the 
wife  of  the  wrong-doer,  since  the  homestead  character  never 
attached  to  the  projyerty? 

A  wife  claimed  title  by  deed  from  her  husband  through  a 
third  person,  and  also  claimed  homestead  against  his  creditors. 
The  court  said :  "  If  the  plaintiff  can  recover  at  all  it  must 
be  by  virtue  of  her  title  derived  from  her  husband's  convey- 
ance m  fee-simple;  and  if  that  conveyance  was  in  fraud  of  his 
creditors,  her  title  fails  without  regard  to  the  value  of  the 
land,  and  notwithstanding  her  homestead  right.  ...  If 
fraudulent  (though  the  question  would  then  arise  whether,  in 
spite  of  that  fact,  she  would  be  entitled  to  a  homestead  on 
appropriate  proceedings  to  assign  and  set  it  out),  she  could 
not  recover  in  this  action."  The  action  was  trespass  qiiare 
claiisum? 

Where  a  disclosure  of  all  his  property  is  required  of  an  ap- 
plicant for  a  homestead  in  realty  and  personalty^  the  withhold- 
ing of  a  part  is  fraud,  and  it  debars  him  from  right  of  exemption ; 
no  homestead  can  be  awarded  him.*  Such  a  result,  author- 
ized by  statute,  is  held  not  unconstitutional  when  the  consti- 
tution itself  declares  that  "  the  legislature  can  pass  such  laws 
as  they  think  proper  to  ferret  out  and  punish  fraud."  * 

A  "  homestead  in  realty  and  personalty  "  is  merely  exemp- 
tion to  a  given  amount,  allowed  the  debtor,  from  execution.  It 
is  not  homestead  in  the  general  acceptation  of  the  term,  but 
its  unlawful  claiming  seems  to  illustrate'  the  fraud  condemned 
in  the  cited  case. 

1  Muir  V.  Bozarth,  44  la.  499 ;  Burn-  2  Muir  v.  Bozarth,  44  Ta.  499. 

side  V.  Terry,  51   Ga    190 ;  Babb  v.  3  Babb  v.  Babb,  61  N.  H.  143. 

Babb,  61  N.  H.  143.    SeQ  Edmunson  *  McNally  v.  Mulherin,  79  Ga   614. 

V.  Meacham,  50  Miss.  34.  »  J5. 


JOINT    TENANCY    AND    TENANCY    IN    COMMON.  131 

§  10.  Joint  Tenancy  and  Tenancy  in  Common. 

To  acquire  homestead  rights  and  privileges,  with  the  com- 
pensating restraints,  the  claimant  or  his  wife  must  not  only  have 
exclusive  ownership  under  some  species  of  title,  but  also  ex- 
clusive right  of  possession.  ]^othing  seems  clearer  than  this. 
Without  such  exclusion,  he  could  not  rightfully  occupy,  nor 
make  the  requisite  declaration  undelr  statutes  prescribing  it,  nor 
record  his  homestead  as  required  in  many  states,  nor  transmit 
to  his  widow  and  minor  children  the  rights  and  possession 
usually  accorded  them  under  the  homestead  laws.  Without 
exclusive  title  and  right  of  possession,  he  could  not  comply 
with  any  of  the  four  conditions  of  the  prevalent  system  of 
homestead  except  that  of  having  a  family. 

There  could  be  no  occupancy  of  a  dwelling  as  a  whole,  un- 
less with  the  consent  of  the  other  joint-tenants  or  tenants  in 
common.  They  might  agree  to  sole  occupancy  by  one  for  a 
stated  time,  for  a  consideration  or  without  one;  but  if  so,  he 
would  hold  as  their  lessee  or  by  sufferance,  and  not  because 
he  is  one  of  the  joint  or  common  tenants. 

Each  has  the  right  of  possession ;  the  legal  right  is  in  each 
for  all  —  not  for  himself  exclusively.  He  holds ^<?/'  my  et per 
tout.  It  is  not  such  a  possession  as  the  homestead  laws  con- 
template; not  such  as  they  build  upon.  Merely  as  a  joint-ten- 
ant, he  has  no  occupanc}'^  which  the  legislator  can  protect ;  no 
such  home  as  can  be  conserved  for  the  benefit  of  the  famil}^ 

Dedication,  as  a  condition  to  the  acquisition  of  homestead,  re- 
quired in  many  states,  is  impossible  without  exclusive  ownership 
of  some  sort,  and  exclusive  right  of  possession,  A  residence 
owned  and  possessed  jointly  with  others,  or  in  common  with 
others,  cannot  be  wholl}^  set  apart  by  one.  It  cannot  partially 
be  set  apart  by  one,  for  that  would  not  be  a  dedication  of  the 
dwelling  but  only  of  an  undivided  interest  in  it,  which  the  law 
does  not  recognize,  since  that  interest  alone  cannot  be  the  home 
of  his  family.  Nor  could  it  be  set  apart  by  all  the  joint-ten- 
ants, or  tenants  in  common  as  the  case  may  be ;  for  the  law  offers 
homestead  protection  to  separate  families  and  not  to  a  com- 
munity of  them.  Husband  and  wife,  indeed,  might  be  such 
tenants  and  yet  become  homestead  beneficiaries,  since  their 
home  is  one  and  their  interests  are  one.  But  no  other  two 
joint-tenants  or  tenants  in  common  could  unite  in  the  dedica- 


132  OWNEUSIIIP. 

tion  of  the  property  held  by  them  so  as  to  have  the  protection 
of  it  as  one  homestead  for  both.  The  impracticabiiityof.it 
will  appear  when  we  reflect  that  the  liabilities  of  each  may  be 
different  from  those  of  the  other.  The  interest  of  one  might 
become  liable  to  forced  sale  while  that  of  the  other  might  not. 
The  sale  of  such  interest  would  render  the  home  no  longer 
protectable.  So,  one  might  abandon  his  homestead  right: 
what  then  would  become  of  the  other's  right?  It  would  not 
save  the  dwelling-house  for  his  family. 

ISTo  statute  authorizes  the  dedication  of  an  undivided  interest 
in  a  family  residence,  as  a  homestead.  Without  such  authori- 
zation (since  the  right  is  solely  statutory),  there  can  be  no 
such  homestead. 

Notice  of  homestead  holding  is  impracticable  without  sole 
ownership  and  exclusive  right  of  possession.  Such  notice  as 
homestead  statutes  require  cannot  be  given  to  the  public,  if 
there  be  nothing  more  than  joint-tenancy  or  tenancy  in  com- 
mon. It  is  prescribed  in  some  statutes  that  the  word  Home- 
stead shall  be  written  in  the  margin  of  the  recorded  title. 
That  is  meant  as  notice  to  the  public  that  the  property  here 
recorded  by  title  is  a  family  residence  free  from  liability  for 
the  ordinary  debts  of  the  owner;  and  it  is  a  warning  to  all 
persons  not  to  trust  the  owner  w^ith  reliance  on  that  property 
to  secure  the  loan,  or  rather  with  the  idea  that  the  property 
could  be  subject  to  execution  upon  a  judgment  for  the  debt. 
If  the  word  should  be  inscribed  in  the  margin  of  a  title  in 
joint-tenancy  or  tenancy  in  common,  it  would  not  be  true. 
The  whole  property  is  not  exempt,  and  the  notice  therefore 
would  be  misleading. 

So  any  other  inscription  of  record,  prescribed  by  statute  as 
notice  to  the  world  that  the  registered  property  is  exempt, 
would  be  a  deception  and  a  fraud  where  the  propert}'^  is  not 
really  exampt  as  a  house  used  by  the  household  (or  a  farm, 
with  appurtenances  in  either  case),  but  is  really  liable  so  far 
as  concerns  the  interests  of  all  the  joint-tenants  or  tenants  in 
common  except  the  one  who  lives  with  his  family  in  the 
house;  and  not  even  exempt  as  to  him,  since  he  does  not 
wholly  own  by  any  sort  of  title  nor  have  the  right  of  exclu- 
sive occupancy :  so  there  is  indeed  no  exception,  with  respect 


JOINT    TENANCY    AND    TENANCY    IN    COMMON.  138 

to  the  homestead  itself,  and  the  notice  would  be  altogether 
misleading,  false  and  fraudulent. 

'No  notice  except  occupancy  is  required  by  several  statutes. 
The  use  of  a  dwelling  and  appurtenances  as  a  family  home  is 
held  sufficient  to  put  those  upon  inquiry  who  may  be  about 
to  loan  money  to  the  owner  and  occupant  of  the  property  and 
to  trust  him  thinking  the  real  estate  liable  to  execution.  But 
occupancy,  as  notice,  would  be  misleading  if  the  occupant  is 
only  a  joint  tenant  or  tenant  in  common.  Having  no  exclu- 
sive right  of  possession,  such  notice  w^ould  give  a  wrong  im- 
pression. It  would  not  be  true  that  all  the  real  estate  occu- 
pied, or  indeed  any  of  it,  is  a  homestead  as  understood  in  the 
prevalent  system.  If  the  interest  of  the  occupant  is  exempt, 
under  the  statutes  and  their  construction  in  some  states,  it  is 
yet  untrue  that  the  family  dwelling  itself  is  exempt  and  in- 
violable as  a  homestead.  The  right  of  survivorship  in  joint- 
tenancy  is  inconsistent  with  homestead  in  joint-tenancy.  The 
object  of  the  prevalent  system  of  homestead,  so  far  as  its 
purposes  of  benevolence  are  affected,  and  indeed  so  far  as  its 
broader  purpose  of  home  conservation  is  concerned,  is  rather 
to  benefit  the  wife,  the  widow  and  the  children  than  the  head 
of  the  family  himself,  as  courts  have  frequently  said.  But  how 
is  the  widow  to  be  pi^otected,  or  the  orphan  minors,  when  the 
dwelling-house  they  occupy  passes  to  the  survivor  of  the  hus- 
band and  father?  She  can  no  more  have  the  widow's  home- 
stead in  it  than  she  can  have  dower.  They  can  have  nothing, 
for  the}'^  inherit  nothing. 

Here  stands  this  law  of  survivorship,  an  insurmountable 
barrier  to  the  transmission  of  homestead  estate  to  the  widow 
and  children.  Wherever  homestead  is  recognized  by  the  courts 
as  existing  in  realty  held  by  joint-tenancy  or  tenancy  in  com- 
mon, this  distinction  should  be  kept  in  view :  such  homestead 
differs  from  the  ordinary  one  in  the  circumstance  that  the 
tenant  in  possession  occupies  solely  b}'^  reason  of  the  suffer- 
ance of  those  who  each  have  an  equal  right  to  occupy.  If 
they  permit  him  to  claim  homestead,  the  rest  of  the  world 
have  no  right  to  complain.  His  possession  could  not  be  dis- 
turbed by  his  creditors  on  the  ground  that  the  sole  ownership 
is  not  in  him. 

It  may  be  said,  with  this  distinction  in  view,  that  the  states 


134  OWNERSHIP, 

which  award  homestead  to  such  an  owner  do  not  materially 
depart  from  the  general  rule  governing  the  subject.  Several 
of  them,  however,  merely  a>ward  exemption  to  the  interest. 

There  may  be  exemption.  The  interest  of  a  joint-tenant  or 
a  tenant  in  common  may  be  protected  by  law,  so  that  his 
share  of  the  proceeds  of  the  property  may  be  reserved  for 
him  when  the  whole  has  been  sold ;  or,  his  interest  may  be 
exempted  from  liability  to  forced  sale  for  his  ordinary,  per- 
sonal debts.  This  is  exemption  —  not  homestead  protection. 
It  is  like  chattel  exemption.  It  is  more  like  the  reservation 
to  him  of  a  stated  sum  in  case  of  the  sale  of  his  property,  real 
or  personal,  under  execution  for  his  debts. 

Such  exemption  of  the  interest  of  a  co-tenant  or  tenant  in 
common  is  allowed  in  several  states.  .  It  is  allowed  in  some 
of  them  under  their  homestead  laws.  If  not  authorized  by 
those  laws,  it  is  held  so  by  the  courts  in  administering  them, 
and  must  be  received,  therefore,  as  law  in  those  states. 

Such  exemption  is  very  different  from  homestead  protec- 
tion, although  the  terms  may  be  confounded.  It  does  not 
necessarily  interfere  with  rights  of  the  other  joint-tenants  or 
tenants  in  common.  Indeed,  the  legislature  cannot  rightfully 
affect  the  rights  of  the  others. 

§  11.  Undivided  Interest  —  Co-tenancy. 

The  authorities  will  be  found  fully  in  accord  with  the  fore- 
going views,  if  we  keep  in  mind  that  homestead  exemption  is 
a  different  thing  from  the  exemption  of  an  undivided  interest 
in  a  homestead,  and  take  the  meaning  of  courts  in  their  use 
of  terms  rather  than  their  literal  expressions  when  those  ex- 
pressions would  seem  to  favor  the  acquisition  of  homestead  in 
property  held  in  joint-tenancy  or  tenancy  in  common. 

First  let  us  notice  those  decisions  in  which  right  terms  are 
employed. 

It  is  held  that  when  statutes  require  ownership  in  a  home- 
stead, entirety  is  meant  —  not  an  undivided  part  or  an  undi- 
vided interest.^ 

The  possession  of  a  tenant  in  common  is  for  his  co-tenants 

>Beecher  v.  Baldy,  7  Mich.  488;  Amphlett  v.  Hibbard,  29  Mich.  398; 
Tharp  v.  Allen,  48  Mich.  392. 


UNDIVIDED    INTEREST 


CO-TENANCY. 


135 


as  well  as  for  himself.  He  cannot  acquire,  therefore,  a  right 
of  homestead  in  land  of  which  he  is  thus  possessed.' 

How  can  homestead,  with  all  of  its  privileges  and  restric- 
tions, be  accorded  to  one  joint-tenant,  when  his  entry  and 
possession  is  not  exclusive,  but  inures  to  the  benefit  of  all?* 

One  tenant  in  common  cannot  dedicate  the  common  prop- 
erty, or  his  interest  in  it,  as  a  public  highway,^  nor  give  the 
right  of  way.* 

How  can  he  have  the  metes  and  bounds  of  a  homestead  laid 
off  upon  real  estate  held  in  common?  He  cannot  do  it  so  as 
to  convey  his  interest  by  private  deed  to  a  grantee,  as  a  spe- 
cific part  designated  by  boundaries,  without  the  consent,  and 
to  the  prejudice,  of  his  co-tenants.^ 

A  tenant  in  common  cannot  divest  the  interest  of  his  co- 


•  Reinhart  v.  Bradshaw,  19  Nev. 
255 ;  Nickals  v.  Winn,  17  Nev.  188 ; 
Terry  v.  Berrj^  13  Nev.  515 ;  Ather- 
ton  V.  Fowler,  96  U.  S.  513.  See 
Hosmer  v.  Wallace,  97  U.  S.  575; 
Trenouth  v.  San  Francisco,  100  U.  S. 
251 ;  Smelting  Co.  v.  Kemp,  104  U.  S. 
647 ;  Frisbie  v.  Whitney,  9  Wall.  193 ; 
Johnson  v.  Towsley,  13  Wall.  72; 
Hosmer  v.  Duggan,  56  Cal.  261 ; 
Davis  V.  Scott,  56  Cal,  165;  Cowell 
V.  Lammers,  10  Saw.  246 ;  Avans  v, 
Everett,  3  Lea,  76 ;  Bemis  v.  DriscoU, 
101  Mass.  421 ;  Holmes  v.  Winches- 
ter, 138  Mass.  542  (Mass.  Stat.  1855, 
ch.  238) ;  Weller  v.  Weller,  131  Mass. 
446 ;  Howes  v.  Burt,  130  Mass.  368 ; 
Bates  V.  Bates,  97  Mass.  392 ;  Thur- 
ston v.  Madtlox,  6  Allen,  427 ;  Sillo- 
way  V.  Brown,  12  Allen,  30 ;  Ward 
V.  Huhn,  16  Minn.  159;  St.  Paul's 
Church  V.  Ford,  34  Barb.  16 ;  West 
V.  Ward,  26  Wis.  580;  Ventress  v. 
Collins,  28  La.  Ann.  783 ;  Borron  v. 
Sollibellos,  28  La.  Ann.  355 ;  Simon 
V.  Walker,  28  La.  Ann.  608. 

2Wiswell  V.  Wilkins,  5  Vt.  87; 
Small  V.  Clifford,  38  Me.  213;  Ter- 
rell V.  Martin,  64  Tex.  121 ;  Taylor  v. 
Cox,  2  B.  Mon.  429 ;  Lindley  v.  Groff 
(Minn.),  34  N.  W.  26 ;  Davis  v.  Givens, 


71  Mo.  94 ;  Blakeney  v.  Ferguson,  20 
Ark.  547. 

3  Scott  V.  State,  1  Sneed  (Tenn.), 
629 ;  St.  Louis  v.  Gas  Light  Co.  (Mo.), 
9  S.  W.  581. 

4  Merrill  v.  Berkshire,  11  Pick.  269. 

5  Rising  V.  Stannard,  17  Mass.  282 ; 
Bartlet  v.  Harlow,  12  Mass.  348; 
Varnum  v.  Abbott,  12  Mass.  474; 
Perkins  v.  Pitts,  11  Mass.  125;  Bald- 
win V.  Whiting,  13  Mass.  57:  Pea- 
body  V.  Minot,  24  Pick.  329 ;  Blossom 
V.  Brightman,  21  Pick.  285  ;  Holcomb 
V.  Coryell,  11  N.  J.  Eq.  548 ;  Boston, 
etc.  Co.  V.  Condit,  19  N,  J.  Eq.  394; 
Hartford  Co.  v.  Miller,  41  Ct.  112; 
Marsh  v.  Holly,  42  Ct.  453 ;  Griswold 
v.  Johnson,  5  Ct.  363 ;  Jeffers  v.  Rad- 
clifiP,  10  N.  H.  242 ;  Whitton  v.  Whitr 
ton,  38  N.  H.  127;  Ballou  v.  Hale,  47 
N.  H.  347 ;  Duncan  v.  Syhester,  24 
Me.  482 ;  Jewett  v.  Stockton,  3  Yerg. 
(Tenn.)  492 ;  Gates  v.  Salmon,  35  Cal. 
576;  Good  v.  Coombs,  28  Tex.  35; 
Dorn  V.  Dunham,  24  Tex.  366;  Mat- 
tox  V.  Hightshue,  39  lud.  95 ;  Shep- 
ardson  v.  Rowland,  28  Wis.  108; 
Markoe  v.  Wakeman,  107  111.  251; 
Cornish  v.  Frees,  74  Wis.  490 ;  West 
v.  Ward,  26  Wis.  579. 


136  OWNERSHIP. 

tenant  by  taking  possession  of,  and  claiming  homestead  in, 
the  common  property.  "  The  right  of  homestead  is  always 
subordinate  to  the  prior  rights  or  interests  of  other  persons  in 
the  property."  ' 

Before  land  held  in  common  has  been  partitioned,  home- 
stead cannot  be  assigned  in  any  part  of  it,  because  it  is  not 
then  known  what  particular  portion  will  be  given  to  any  one 
of  the  co-tenants.  Each  is  seized  "  by  one  and  by  all,"  yet  no 
one  exclusively  owns  a  foot  of  the  land.  It  is  impossible, 
where  the  law  requires  homesteads  to  be  set  apart  by  metes 
and  bounds,  that  there  can  be  any  such  setting  apart  before 
partition.^  "When  a  court  or  commissioners  have  assigned 
homesteads  in  such  property,  though  illegally,  there  would  be 
no  wrong  in  so  ordering  a  partition  afterwards  as  to  give  to 
each  tenant  his  share  previously  admeasured,  if  it  can  be  done 
without  injustice  to  any.'  When  land  is  sold  to  effect  parti- 
tion, the  exempt  interest  of  any  owner  may  be  demanded  out 
of  the  proceeds.* 

One  may  have  an  exemption  right  in  his  undivided  interest 
in  land,  by  statute.  If  such  a  one  buy  the  other  interests  in 
the  land  so  as  to  become  sole  owner  of  the  whole  as  a  home- 
stead, would  a  judgment  lien  prior  to  his  purchase,  recorded 
against  his  then  existing  interest,  now  become  operative  over 
the  whole?     This  is  answered  in  the  negative.^ 

It  has  been  frequently  held  that  homestead  cannot  be  carved 
out  of  an  undivided  interest  in  real  estate.** 

1  Lynch  V.  Lynch,  18  Neb.  586,  589 ;  is  held  in  IlUnois,  Iowa,  Arkansas, 

Bowker  v.  ColUns,  4  Neb.  496 ;  State  Texas,    Vermont    and      Michigan." 

Bank  v.  Carson,  4  Neb.  502 ;  Gunn  Exposition  of  Minn.  Gen.  Stat.  1878, 

V.  Barry,   15  Wall.  623 ;  Homestead  ch.  68,  §  1. 

Cases,  22  Gratt.  331.  <>  Bemis  v.   Driscoll,  101  Mass.  418; 

*  Nance  v.  Hill,  26  S.  C.  227.  Thurston  v.  Maddocks,  6  Allen,  427; 
i  Mellichamp     v.    Mellichamp,    28  J.  L  Case  Co.  v.  Joyce,  89  Tenn.  337 ; 

S.  C.  125,  Avens  v.  Everett,  3  Lea,  76 ;  Barron 

*  Ex  parte  Carraway,  28  S.  C.  233.  v.  Sollibellos,  28  La.  Ann.  355 ;  Ven- 
5  Kaser  v.  Haas,  27  Minn.  406  (ex-  tress  v.  Collins,  28  La.  Ann.  783 ;  Sim- 
plaining  Ward  V.  Huhn,  16  Minn,  mon  v.  Walker,  28  La.  Ann.  608 ;  Lozo 
159),  and  saying:  "That  tlie  owner  v.  Sutherland,  38  Mich.  168;  West  v. 
of  an  undivided  interest  only  cannot  Ward,  26  Wis.  579;  Cameto  v.  Du- 
claim  the  exemption  is  held  in  Massa-  puy,  47  Cal.  79  :  Kingsley  v.  Kings- 
chusetts,  New  Hampshire,  California,  ley,  39  Cal.  665  ;  Seaton  v.  Son,  33 
Indiana  and  Wisconsin ;  the  contrary  Cal.  481;  Elias  v.  Verdugo,  27  Cal. 


UNDIVIDED    INTEREST CO-TENANCY.  137 

Where  a  different  rule  prevails,  the  fact  that  one  has  an  un- 
divided interest  in  a  tract  of  land  larger  than  the  homestead 
limit  will  not  entitle  him  to  claim  a  greater  exemjit  acreage 
than  he  would  if  he  owned  the  whole."^  If  the  whole  is  mort- 
gaged, and  the  wife  has  joined  in  the  act,  the  foreclosure  will 
defeat  the  homestead  right.  IS^ow,  if,  after  foreclosure  and 
sale,  the  homestead  beneficiaries  desire  to  redeem  their  inter- 
est, to  claim  homestead  right  therein,  they  can  do  so  only  by 
redeeming  the  whole  tract. - 

A  statute  which  exempts  "a  homestead  or  real  estate^''  to  a 
given  value,  "  in  tJic  possession  of,  or  belonging  to,  each  head 
of  the  family,'"  who  "  shall  have  the  right  to  elect  wdiere  the 
homestead  or  said  exemption  shall  be  set  apart,  whether  liv- 
ing on  the  same  or  not;  '  and  which  requires  the  homestead 
to  be  set  aj^rt  bj^  metes  and  bounds,*  is  held  to  preclude 
homestead  in  an  undivided  interest.  The  right  does  not  at- 
tach to  such  interest.  A  home  occupied  by  the  owner  of  such 
an  interest  in  it  cannot  be  his  homestead.  He  may  mortgage 
his  interest  without  his  wife's  joining  in  the  act.^ 

The  terms  of  this  statute,  distinguishing  between  homestead 
and  exemption,  may  give  color  to  a  claim  of  exemption  in  a  spe- 
cies of  property  not  susceptible  of  being  laid  off  by  metes  and 
bounds.  Certainly  there  is  more  latitude  here  for  construction 
in  favor  of  saving  to  the  debtor  his  interest  as  a  joint-tenant  or 

418;  Bishop  v.  Hubbard,  23  Cal.  514;  wliich  makes  the  best  case  possible 

Kellt  r.sbergei-   v.   Kopp,  6   Cal.    565;  for   the   other   side.     The   following 

Reynolds  v.  Pixley,  6  Cal.  105 ;  Wolf  are   cited   by   the   court :    Avens   v. 

V.  Fleischacker,  5  Cal.  244.     Contra,  Everett,   supra;  Flatt  v.  Stadler,  16 

Kaser  v.    Haas,   27   Minn.   406 ;  but  Lea,  371-9  ;  Chalfant  v.  Grant,  3  Lea, 

compare  Ward  v.  Huhn,  16  Minn.  159 ;  118 ;  Spiro  v.  Paxton,  3  Lea,  75 ;  Gill  v. 

Kresin  v.     Man.  15   Minn.  116,  and  Lattimore,  9    Lea,    381;    Hollins   v. 

Kelly  V.  Dill,  23  Minn.  435.    In  the  Webb,  2  Leg.  R.  74,   See  several  cases 

above  cited  case  of  the  J.  L  Case  Com-  cited  in   the  dissenting  opinion,  89 

pany  v.  Joyce,  the  denial   of  home-  Tenn.  351. 

stead  in  an   undivided  interest  —  in  ^  O'Brien  v.   Krenz,  36  Minn.  136; 

realty     held     by     joint-tenancy  —  is  Ward  v.  Huhn,  16  Minn.  142. 

strongly  put  for  the  court  by  Judge  -i&.;  Martin  v.  Sprague,  29  Minn. 

Suodgrass.    Much  of  the  opinion  is  in  53;  Willis  v.  Jelineck,  27  Minn.  18. 

explanation  of  Tennessee  statutes,  but  ^  Tennessee  Code,  §§  2935-6,  2940-1, 

the  general  argument   is  applicable  2944. 

everywhere.     See  also  the  dissenting  *  Threshing  Machine  Co.  T.Joyce 

opinion    of    Judge     Caldwell    (with  (Tenn.),  16  S.  W.  147.    • 
concurrence    of  the  cliief    justice), 


138  OWNERSHIP. 

tenant  in  common,  than  there  is  in  other  homestead  statutes 
which  have  been  construed  to  do  so.  Doubtless,  however,  the 
exposition  of  the  court  is  correct.  No  occupancy  of  a  home 
by  an  owner  is  possible  when  the  occupant  is  not  the  owner 
of  that  home  but  only  of  an  undivided  part  of  it.  No  free- 
holders, appointed  to  lay  off  a  homestead  to  him,  could  pos- 
sibly do  so  oat  of  any  "  real  estate,"  however  extensive  — 
however  exceeding  many  fold  the  legal  maximum  of  quantity 
or  value  when  his  interest  is  only  that  of  a  joint-tenant  or 
tenant  in  common. 

§  12.  Exemption  of  Undivided  Interest. 

There  are  cases  which  have  been  cited  as  favoring  the  ex- 
istence of  homesteads  in  mere  interests  —  mere  rights  in 
dwelling-houses  and  lands  without  ownership  of  the  houses  or 
ground  with  exclusive  right  of  possession —  mere  ideal  realty 
(a  contradiction  of  terms),  in  which  there  could  be  no  hearth- 
stone or  roof-tree.  Evidently,  whatever  the  terms  used,  the 
courts  have  meant  that  joint-tenants  and  tenants  in  common 
may  have  their  interests  exempt:  not  that  they  could  live 
in  an  undivided  interest  and  have  homestead  therein.  Or  they 
have  meant  that  the  owner  of  the  interest  could  claim  par- 
tition and  then  have  his  homestead  laid  off  to  him  from  his 
allotted  portion.  And  sometimes  they  have  made  deliverances 
under  the  momentary  impression  that  exemption  from  forced 
sale  is  s3'^nonymous  with  homestead  or  homestead  right.^ 

No  doubt  husband  and  wife  may  hold  in  joint-tenancy,  for 
they  are  one  in  such  sense  that  the  possession  is  exclusive;  and 
where  they  so  hold,  the  survivor  takes  sole  title,  and  there  is 

1  Horn  V.  Tufts,  39  N.  H.  478 ;  Dan-  Ferguson  v.  Reed,  45  Tex.  584 ;  Clem- 
forth  V.  Beattie,  43  Vt.  138 ;  McClary  ents  v.  Lacey,  51  Tex.  150 ;  Jenkins  v. 
V.  Bixby,  36  Vt.  254 ;  Greenwood  v.  Volz,  54  Tex.  636 ;  Brown  v.  McLen- 
Maddox,  27  Ark.  6C0  ;  Ward  v.  May-  nan,  60  Tex.  43  ;  McGrath  v.  Sinclair, 
field,  41  Ark.  94 ;  Hewitt  v.  Rankin,  55  Miss.  89 ;  Greenwood  v.  Maddox, 
41  la.  35;  Tarrant  v.  Swain,  15  Kas.  27  Ark.  648;  Sentell  v.  Armor,  35 
146 ;  Snedecor  v.  Freeman,  71  Ala.  Ark.  49 ;  Thompson  v.  King  (Ark.), 
140 ;  McGuire  v.  Van  Pelt,  55  Ala.  14  S.  W.  925 ;  Lozo  v.  Sutherland,  38 
344;  Robinson  v.  McDonald,  11  Tex.  Mich.  168;  Sherrid  v.  Southwick,  43 
385;  Smith  v.  Deschaumes,  37  Tex.  Mich.  518;  Tharp  v.  Allen,  46  Mich. 
429;  Williams  v.  Wethered,  37  Tex.  389;  Qeaver  v.  Bigelow,  61  Mich.  47; 
130 ;  Lacey  v.  Clements,  36  Tex.  663 ;  Kruger  v.  Le  Blanc,  75  Mich.  424. 


EXEMPTION    OF    UNDIVIDED    INTEREST.  139 

nothing  in  conflict  with  established  law  or  principle.^  But 
how  can  any  other  joint-tenant  or  tenant  in  common  have  that 
exclusive  possession  which  is  essential  to  homestead  occupancy? 
And  how  can  even  conjugal  co-tenants  have  a  homestead  on 
their  undivided  land  when  the  statute  requires  that  it  shall  be 
upon  the  land  of  the  owner,  and  makes  provisions  inij)ractica- 
ble  where  there  is  joint-tenancy?- 

No  doubt  homestead  is  practicable  on  land  owned  by  hus- 
band and  wife  whose  interests  are  undivided,  provided  the 
statute  accords;  but  it  is  not  practicable  for  a  home  or  home- 
stead to  exist  when  the  interest  of  the  joint-tenants  are  such 
that  each  owner  has  right  of  possession,  one  for  all,  and  all 
together  do  not  constitute  one  family  so  as  to  have  one  home  — 
and  it  is  hardly  possible  that  the  legislator  can  make  it  prac- 
ticable. 

It  has  been  held,  however,  that  a  tenant  in  common,  carry- 
ing on  a  hotel,  leasing  the  interests  of  the  other  tenants  in 
common,  and  residing  in  the  hotel  with  his  family,  is  entitled 
to  homestead  in  the  property  when  it  appears  that  he  has  no 
other  real  estate  upon  which  to  establish  and  claim  a  home- 
stead.^ 

There  seems  to  be  nothing  in  the  statutes  of  the  state  in 
which  this  was  held  which  limits  the  benefit  of  homestead  to 
persons  who  have  no  realty  but  that  claimed  as  homestead.^ 
This  point  may  be  discussed  elsewhere.  Here  the  case  is  cited 
for  its  bearing  on  the  doctrine  of  homestead  owned  by  tenants 
in  common.  The  court  holds  that  the  doctrine  is  settled  in 
the  state  that  homestead  can  be  claimed  by  a  tenant  in  com- 
mon.* 

Two  brothers  owned  forty  acres  in  common.  One  of  them 
was  married,  and  though  the  land  was  held  in  common,  he  was 
recognized  as  having  a  homestead  interest  in  it.  They  also 
owned  in  common  and  cultivated  a  large  tract  of  land  besides, 

1  Jackson  v.  Shelton,  89  Tenn.  82 ;  Judge  Caldwell  in  the  J.  I.  Case  Co. 

distinguishing  McRoberts  v.    Cope-  v.  Joyce,  81  Tenn.  351. 

land.  85  Tenn.  211,  and  Ames  v.  Nor-  »  King  v.  Welbarn,  83  Mich.  195. 

man,  4    Sneed,   682,   and  ovevruhng  *  Howell's  Stat,  of  Mich. ,  §§  7731- 

CuUom  V.  Cooper  (Tenn.),  Dec.  term.  7729. 

1888  ;  Tenn.  Code  (M.  &  V.),  §g  2935-7,  5  Citing  Shepard  v.  Cross,  33  Michl 

2946 ;  (T.  &  S.)  §  2113a  et  seq.  98. 

-  See  the  able  dissenting  opinion  of 


140  OWNERSHIP. 

They  contracted  to  furnish  money  to  a  cattle-raiser  for  half 
his  profits,  and  borrowed  money  to  do  so.  The  business  proved 
a  faikire,  and  their  kind  (except  the  forty  acres)  was  sold  to 
pay  debts.  The  married  brother  died,  and  the  single  one  con- 
veyed his  interest  in  the  forty  acres  to  the  widow.  She  claimed 
the  whole  as  her  homestead  exempt  from  the  debts  of  the 
partnership,  and  of  the  surviving  brother  as  one  of  the  part- 
ners. It  is  clear  enough  that  the  forty -acre  tract  had  not  been 
used  in  the  cattle  business  and  was  not  an  asset  of  the  part- 
nership. But  was  not  the  unmarried  brother's  interest  liable? 
Had  it  remained  in  his  hands,  perhaps  it  w^ould  have  been ;  but 
his  conveyance  of  it  to  his  sister-in-law  may  have  been  in  set- 
tlement of  property  rights  between  himself  and  his  deceased 
brother's  estate,  as  the  court  said.  It  cannot  be  decreed  to 
have  been  conveyed  in  fraud  of  creditors  in  the  absence  of 
proof  of  such  fact.     This  was  the  conclusion  of  the  court.^ 

The  exemption  of  interests  in  personal  property  has  little  or 
no  analogy  to  the  selection  and  dedication  of  a  homestead. 
Such  exemption  has  been  allowed  to  joint-tenants  or  tenants 
in  common."  It  is  not  practicable  to  allow  it  without  a  divis- 
ion of  the  property  so  that  the  beneficiary  may  own  in  sever- 
alty. If  the  chattel  is  indivisible,  such  as  a  reaping  machine, 
the  interest  of  one  partner  cannot  be  separated  without  sale. 
If  it  consists  of  wheat,  a  share  may  be  separated  from  the 
rest.^ 

§  13.  Co-tenancy  of  Husband  and  Wife. 

It  has  been  mentioned  that  when  there  are  but  two  joint- 
tenants,  and  they  are  husband  and  wife,  the  property  held  by 

1  Fordyce  v.  Hicks,  80  la.  272.  empt  home.     Wolf  v.  Fleischacker,  5 

2Servantiv.  Lusk,  48Cal.  238;  Rad-  Cal.  244;    S.  C,  63  Am.  Dec.    131; 

clifif  V.  Wood,  25  Barb.  52.  Reynolds  v.  Pixley,  6  Cal.  165 ;  Giblin 

3  Newton  v.    Howe,   29  Wis.  531;  v.  Jordan,  6  Cal.  417 ;  Kellersberger  v. 

Wright  V.  Pratt,  31  Wis.  99.    In  Call-  Kopp,  G  Cal.  565  ;  Bishop  v.  Hubbard, 

fornia,  before  1868,  land  held  in  com-  23  Cal.  517  ;  Elias  v.  Verdugo,  27  Cal. 

mon  or  by  joint-tenancy  was  not  ex-  418;    Seaton    v.   Son,   32    Cal.   481; 

empt  under  the  homestead  law:  so  a  Kingsley   v.  Kingsley,  39  Cal.  665; 

difference  will  be  found  between  the  Emerson  v.  Sansome,  41  Cal.  553;  Ca- 

earlier  and  the  later  cases  presented  meto  v.  Dupuy,  47  Cal.  79 ;  First  Nat. 

below,  though  the  later  ones  can  go  Bank  v.  De  La  Guerra,  61  Cal.  109; 

no  further  than  to  hold  that  the  in-  Carroll    v.    Ellis.    63   Cal.    440 ;  Fitz- 

terest  of  the  tenant  is  exempt  — not  gerald  v.  Fernandez,  71  Cal.  504. 

that  it  can  possibly  constitute  an  ex- 


CO-TENANACY    OF    HUSBAND    AND    WIFK.  141 

them  as  such  may  be  made  their  homestead  and  occupied  by 
them  as  such,  without  any  of  tlie  absurd  results  whicli  have 
been  suggested.  But  they  cannot  join  in  conveying  an  un- 
divided interest  in  such  homestead  property  to  a  third  person, 
so  as  to  make  him  a  joint-tenant  or  a  tenant  in  common  with 
them  without  destroying  their  lioniestcad  privilege.^ 

The  husband  was  the  head  of  his  family.  He  had  an  in- 
terest in  the  tract  of  land  on  which  he  resided  greater  than 
the  homestead  limit  of  value,  in  his  state.  His  wife  also 
owned  an  interest  in  it  greater  than  the  monetary  homestead 
maximum.  It  was  held,  in  a  suit  in  whicli  the  husband  was 
sued  as  debtor,  that  the  whole  exemption  could  be  claimed  by 
him  to  protect  his  interest  as  far  as  it  would  do  so.^ 

In  stating  the  exceptional  case  of  married  joint-tenants  and 
such  tenants  in  common —  very  curious  as  the  exception  is  — 
some  courts  have  gone  beyond  it  and  held,  not  only  that  they 
may  hohl  and  occupy  their  dwelling  as  their  homestead  under 
such  title  and  without  partition  (which  is  certainly  correct), 
but  that  they  may  .hold  it  in  common  with  others.^  This, 
literally  taken,  is  in  direct  conflict  with  the  well-considered 
decision  cited  above  on  this  point.  If  others  have  interest  in 
the  family  dwelling,  the  married  occupants  cannot  exclusively 
own,  nor  have  exclusive  right  of  possession. 

The  occupancy  would  be  by  sufferance,  so  far  as  the  interests 
of  others  are  concerned.  Those  others  may  be  bachelors  to 
whom  the  law  ofl'ers  no  homestead  rights ;  rather,  they  may 
be  persons  who  have  not  complied  with  any  of  the  conditions, 
"With  their  consent,  the  man  and  wife  might  still  occupy  the 
dwelling,  but  it  could  not  be  wholly  a  homestead  in  the  tech- 
nical sense  of  the  word,  and  the  law  does  not  recognize  a  part 
of  a  one. 

With  the  assent  of  his  co-tenants  in  common,  one  may  claim 
homestead  as  against  his  creditors,  it  has  been  said,  without 
qualification  and  without  reference  to  the  excej^tional  situation 
of  marital  parties  as  co-tenants ;  ■*  but  evidently  only  the  exemp- 
tion of  the  interest  owned  by  him  in  the  homestead  could  have 
been  meant, 

1  Howes  V.  Burt,  130  Mass.  368.  Tharp  v.  Allen,  46  Mich.  389 ;  Sherrid 

2  Hart  V.  Leete,  104  Mo.  315.  v.  Soutlnvick,  43  Mich.  515. 

a  Lozo  V.  Sutherland,  38  Mich.  168 ;  <  McGrath  v.  Sinclair,  55  Miss.  89 ; 
Cleaver  v.   Bigelow,    61    Mich.    47 ;     Thorn  v.  Thorn,  14  la,  49. 


142  OWNERSHIP. 

Husband  and  wife  being  tenants  in  common,  and  his  inter- 
est in  the  land  being  sold  in  banlvruptcy  proceedings  against 
him  only  (except  two  hundred  acres  reserved  as  the  home- 
stead), the  purchasers  became  tenants  in  common  with  the 
wife.'  This  is  not  a  case  where  exemption  of  the  interest  of  a 
tenant  in  common  is  treated  as  homestead.- 

It  has  been  held  (the  homestead  right  not  being  distin- 
guished from  the  mere  right  of  exemption)  that  a  husband 
and  wife  owning  an  undivided  interest  in  land  may  claim 
homestead  therein.  His  interest  alone  will  not  be  considered 
when  the  value  of  the  homestead  is  estimated ;  he  is  necessa- 
rily the  occupant  of  the  undivided  property  when  he  has 
homestead  right  in  it,  and  his  wife's  interest  must  be  counted 
with  his  in  estimating  the  property.* 

If  a  man  and  woman  own  real  estate  in  common,  and  they 
marry  each  other,  all  objection  to  homestead  in  property  held 
in  common  or  by  co-tenants  would  vanish  in  their  particular 
case.  They  would  have  title  and  exclusive  right  of  possession 
to  the  whole,  and  all  the  usual  difficulties  would  disappear. 

The  wife  of  a  partner  in  undivided  land  may  apply  to  have 
a  homestead  set  apart  in  it,  with  the  consent  of  her  husband, 
who  does  not  himself  apply,  and  may  have  the  land  parti- 
tioned for  the  purpose.'' 

An  estate  vested  in  a  husband  and  wife  is  held  as  an  en- 
tirety, and  not  by  moieties,  and  the  title  therefore  not  an 
ordinary  joint-tenancy.^  One  cannot  incumber  or  alienate 
the  property  without  joinder  by  the  other,  though  the  hus- 
band has  the  rents  and  profits  while  the  wife  lives."  It  has 
been  held,  however,  that  the  husband's  interest  can  be  seized 

1  Battle  V.  John,  49  Tex.  202.  *  Hunnicutt  v.  Summey,  63  Ga.  586. 

2 In  Texas    a  tenant  in   common  So,  if  the  propei'ty  has  been  aheady 

may  have  a  homestead  estate  in  land  divided.    Harris  v.  Visscher,  57   Ga. 

held  in  common.     His  estate  is  not  229.     But  not  exempt  against  prior 

limited  to  his  undivided  interest  in  200  debts  due  by  partner.    Van  Dyke  v. 

acres  constituting  a  rural  homestead  Kilgo,  54  Ga.  551.    Wife  would  be 

but  may  be  an  undivided  interest  of  too  late  to  apply  after  bankruptcy 

200  acres  in  a  larger  tract.     Lewis  v.  surrender.    Smith  v.  Roberts,  61  Ga. 

Sellick,  69  Tex.  379 ;  Jenkins  v.  Volz,  223.     See  Laramore  v.  McKinzie,  60 

54  Tex.  639  ;  Clements  v.  Lacy,  51  Tex.  Ga.  532. 

156;  Tex.  Rev.  Stat.,  §  2336;  Brown  ^Gillan  v.  Dixon,  65  Pa.  St.  395; 

V.  McLennan,  60  Tex.  43.  Den  v.  Hardenburgh,  10  N.  J.  L.  42. 

3  Herdman  v.  Cooper,  29  111.  App.  «  Bates  v.  Seely,  46  Pa.    St.    248 ; 

589.  Stuckey  v.  Keefe's  Ex're,  26  Pa,  St. 


PARTNERSIIir    PKOPEUTY.  143 

and  sold  on  execution  during  coverture/  and  that  the  husband 
alone  ma}^  convey  his  interest.^ 

A  husband  and  wife  together  may  be  one  tenant  in  com- 
mon :  they  taking  one  moiety  and  a  co-grantee  the  other.' 

The  law  of  survivorship,  however,  ap])lies  as  in  any  joint- 
tenancy,*  where  it  is  recognized;  but  it  is  disfavored  or  abol- 
ished in  some  of  the  states,  except  in  respect  to  joint  trustees.^ 
Still  it  would  seem  that  it  can  be  created  by  will  or  deed.  It 
has  been  held  that  a  state  cannot  divest  joint-tenants  of  the 
right  of  survivorship.*^ 

The  homestead  of  the  widow  derived  from  her  late  husband, 
which  is  akin  to  dower,  is  different  from  other  homesteads  — 
not  requiring  the  same  conditions:  it  is  held  that  it  would  not 
be  lost  by  another's  acquiring  an  interest  in  common  with 
her,  such  as  an  easement  appertaining  to  the  homestead  es- 
tate and  enjoyed  in  common.' 

The  mother  and  children  may  be  co-tenants  of  a  home- 
stead,—  she  having  a  terminable  interest  and  they  the  fee,®  — 
yet  the  children's  interest  be  liable  to  probate  sale,^  when  the 
exemption  statute  is  merely  to  protect  the  homestead  from 
creditors  —  not  to  restrict  the  power  of  the  courts  to  deal 
with  it  as  belonging  to  heirs.'" 

§  14.  Partnership  Property. 

It  is  generally  held  that  partnership  property  cannot  be  the 
subject  of  homestead  exemption. '^     For  the  policy  of  the  state 

397 ;  Wales  v.  Coffin,  13  Allen,  213 ;        ^  Weller  v.  Weller,  131  I\Iass.  446 ; 

Henimingway  v.  Scales,  42  Miss.  1 ;  Dennis    v.   Wilson,    107    Mass.   591 ; 

S.  C,  2  Am.  Rep.  586 ;  Beach  v.  Hoi-  Symmes  v.  Drew,  21  Pick.  278 ;  Hoff- 

lister,  3  Hun,  519.  man  v.  Savage,  15  Mass.  130. 

1  Tladung  v.  Eose,  58  Md.  13.  »  Hardin  v,  Osborne,  43  Miss.  532. 

2  Benedict  v.  Gaylord,  11  Ct  332.  »  McCaleb  v.  Burnett,  55  Miss.  83. 

s  Johnson  v.  Hart,  6  Watts  &  S.  319.  lo  Morton  v.  McCanless,  68  Miss.  810 ; 

4  Stuckey  v.  Keefe's  Ex'rs,  26  Pa,  10  So.  72 ;  Miss.  Code  of  1857,  art.  151, 
SL  397.  p.  463 ;  Acts  1865,  p.  137. 

5  Lowe  V.  Brooks,  23  Ga.  325;  n  Terry  v.  Berry,  13  Nev.  515; 
Phelps  V.  Jepson,  1  Root  (Ct.),  48;  Rhodes  v.  Williams,  12  Nev.  20; 
Nichols  V.  Denny,  37  Miss.  59 ;  Jones  Bonsall  v.  Conly,  44  Pa.  St.  447 ; 
V.  Cable  (Pa.),  7  A.  791 ;  Sergeant  v.  Clegg  v.  Houston,  1  Phila.  353 ;  Kings- 
Steinberger,  2  Ohio,  305 ;  Miles  v.  ley  v.  Kingsley,  39  Cal.  666 ;  Gaylord 
Fisher,  10  Ohio,  1;  1  Wash.  Real  Prop.  v.  Imhoff,  26  O.  St.  317;  Guptil  v. 
(5th  Ed.),  408.  McFee,  9  Kas.  30 ;  Wright  v.  Pratt, 

6Green  V.  Blanchar,40Cal.  194  31   Wis.  99;   Russell   v.    Lennon,  39 


144  OWNERSHIP. 

is  not  to  perpetuate  partnerships  but  to  protect  homes.  No 
homestead  is  offered  to  firms  bv  statute ;  that  is,  no  safeijuard 
is  thrown  around  the  ]iro])orty  of  a  partnership,  to  save  it 
from  execution,  in  the  way  family  residences  are  saved. 

The  member  of  a  firm  cannot  liave  a  liome  for  his  fainily 
in  tlie  share  whicli  he  lias  in  the  firm's  effects,  or  in  his  share 
of  the  real  estate  of  the  firm.  He  cannot  build  a  house  in 
such  unseparated  share. 

Even  though  the  real  estate,  claimed  l^y  an  individual  part- 
ner as  his  homestead,  stands  in  his  name,  and  he  has  the  legal 
title,  he  cannot  acquire  homestead  exemption  right  in  it,  if  it 
really  belongs  to  his  firm.  lie  cannot  acquire  such  right  as 
against  his  partners,  or  as  against  their  creditors.^ 

When  there  has  been  a  dissolution  of  partnership,  and  a 
late  member  owns  certain  property  in  severalty  derived  from 
the  firm,  there  would  seem  to  be  no  reason  why  he  may  not 
have  the  benefit  of  a  chattel  exemption  law.-  If  one  partner 
can  have  individual  ownership  of  a  chattel  by  consent  of  his 
copartners  after  a  suit  against  the  firm  has  been  prosecuted 
to  judgment,  it  may  come  under  the  operation  of  exemption 
law.^  But  the  judgment  creditor  cannot  be  thus  divested  of 
his  general  lien  by  such  action  on  the  part  of  the  copartners.^ 

Partnership  assets,  when  no  longer  the  exclusive  property 
of  a  firm,  but  that  of  the  individual  members,  may  be  subject 
to  statutory  exemption.'^  Unless  there  are  creditors  of  the 
firm,  there  can  be  nothing  to  hinder  exemption. 

Wis.  570 ;  Re  Smith,  2  Hughes,  307 ;  Stout  v.  McNeil,  98  N.  C.  1 ;  Scott  v. 

Re  Handlin,  3  Dill.  290 ;  Holmes  v.  Kenau,  94  N.  C.  296 ;  Burns  v.  Harris, 

Winchester,  138  Mass.    542;    Weller  67  N.  C.  140.  And  it  is  held  that  a  cred- 

V.  Weller,   131   Mass.   446;  Pond   v.  itor  cannot  question   the  allotment 

Kimball,   101    Mass.    105;    Bates    v.  of  homestead  to  one  partner,  from 

Bates,  97  Mass.  392 ;  State  v.  Spencer,  partnership  lands, —  the  other  part- 

64  Mo.  355.                     ■  ners  consenting.    McMillan  v.  Parker 

1  Drake  v.  Moore,  66  la.  58 ;  Hoyt  (N.  C),  13  S.  E.  764. 
V.  Hoyt,  69  Ta.  174.  5  Watson    v.   McKinnon,   73    Tex. 
2Worman  V.  Giddey.  30  Mich.  151.  210;    Harrison  v.    Mitchell,   13    La 
3  Burns  v.  Harris,  67  N.  C.  140.  Ann.  260 ;  Farmers'  Bank  v.  Frank- 
lin North  Carolina,  partners  may  lin,    1    La.    Ann.    393;    Brewer    v. 
consent  that  one  of  them  shall  have  Granger,   45    Ala.    580 ;    Stewart    v. 
homestead   laid   oil    in    partnership  Brown,    37   N.    Y.    350;    Radcliflf   v. 
realty,  despite  the  creditors.     McMil-  Wood,  25  Barb.  52. 
Ian  V.  Parker  (N.  C),  13  S.  E.  764; 


PARTNERSHIP  PROPERTY.  145 

If  a  mortgage  be  given  by  co-owners  to  secure  a  loan,  and 
one  subsequently  buy  the  other's  part,  he  cannot  ckiim  home- 
stead in  the  land  against  the  mortgage.  Especially  is  this  true 
when  he  has  assumed  the  w^hole  mortgage-note  as  the  pur- 
chase-price, since  exemption  does  not  apply  to  the  vendor's 
lien.^ 

A  partner  was  allowed  his  homestead  claim  to  one  half  a 
tract  of  land  that  had  been  owned  by  the- firm,  after  the  other 
partner  had  dissolved  the  partnership  by  deeding  his  interest  to 
his  wife.^  The  transfer  to  the  wife  did  not  make  her  a  part- 
ner ;  but  it  made  her  joint-owner  of  undivided  realty. 

1  Soulier  v.   Sheriff,   37   La,    Ann.  2Watson    v.   McKinnon,   73    Tex. 

162.     Undivided  property  cannot  be  210.     As  to  the  dissolution  by  the 

the  object  of  a  homestead  right  in  conveyance :    lb.;  Carroll  v.  Evans, 

Louisiana.     Brannin  v.  Womble,  83  27  Tex.  262 ;  Rogers  v.  Nichols,  20 

La.  Ann.  805 ;  Henderson  v.  Hoy,  26  Tex.  724 ;  Story  on  Part,  §§  307,  858 ; 

La.  Ann.  156 ;  Cole  v.  La  Chambre,  Lindl  on  Part.,  pp.  230,  698,  700. 
31  La.  Ann.  41 ;  Duncan  v.  Eastiu,  30 
La,  Ann.  1130. 
10 


CHAPTER  y. 


DEDICATION. 


1.  Selection  of  a  Homestead. 

2.  Selection  of  Two  or  More  Tracts. 

3.  Platting. 

4.  Form  of  Land  Selected. 


§  5.  Declaration :  Methods. 

6.  Declaration :  Requisites. 

7.  Notification. 

8.  Recording. 


§  1.  Selection  of  a  Homestead. 

The  beneficiary  is  confined  to  one  homestead.  lie  occupies, 
with  his  family,  but  one.  lie  may  own  several  houses  sus- 
ceptible of  being  family  residences,  and  all  may  be  used  as 
homes  by  different  persons  under  lease  from  him,  and  each 
may  be  the  homestead  of  a  tenant,  if  dedicated  as  such  upon 
leasehold  title,  by  the  lessee ;  yet  the  landlord  himself  can 
claim  only  his  own  residence  as  his  homestead.  It  would  be 
manifestly  absurd  to  hold  that  his  tenants  can  have  home- 
steads in  the  houses  he  has  rented  to  them,  and  that  he  could 
include  all  or  any  of  the  leased  tenements  with  the  real  estate 
he  occupies  as  a  home,  to  constitute  his  homestead. 

Why  is  selection  necessary?  It  is  common  enough  for  a 
man  of  means  to  have  a  winter  and  a  summer  residence ;  to 
have  a  city  and  a  country  home,  yet  he  can  have  but  one 
homestead,  in  the  legal  sense.  He  cannot  have  one,  and  his 
wife  another,  in  that  sense.  He  and  his  wife  cannot  have  one, 
and  his  minor  children  another,  in  that  sense.  He  may  oc- 
cupy a  tract  of  land  larger  than  that  which  the  statute  exempts. 
It  therefore  is  necessary  for  him  to  select  from  his  realty  the 
house  and  land  to  be  exempted,  and  dedicate  it  by  making  a 
declaration  (in  states  which  require  this),  to  protect  it  from 
execution  for  his  personal  debts,  upon  his  compliance  with 
the  condition.  It  is  well  settled  that  one  person  cannot  have 
two  homesteads.^ 

1  Beard  v.    Johnson,  87  Ala.  729 ;  55  Ala.  576 ;  Kresin  v.  Man,  15  Minn. 

Hay  T.  Bangh,  77  111.  502 ;  Walters  v.  116 ;  Kelly  v.  Baker,  10  filinn.   124 ; 

People,  18  111.  194;  Weiner  t.  Ster-  Adams  v.   Jenkins,    16    Gray,    146; 

ling,  61   Ala.  98;   Bender  v.  Meyer,  Thatcher  v.  Howard,  2  Met.  45 ;  Good- 


SELECTION    OF    A    HOMESTEAD.  147 

When  a  liomestead,  within  the  prescribed  vakie,  has  been 
duly  established,  it  has  been  held  not  impaired  by  the  erection 
of  a  second  dwelling  for  a  tenant,  upon  the  exempt  grounds, 
and  that  the  second  will  not  be  subject  to  execution,  unless 
the  property  be  of  the  full  monetary  extent  without  it.' 

It  is  quite  settled  that  there  could  have  been  no  declaration 
upon  the  two  dwellings,  when  the  homestead  was  established ;  ^ 
but  the  subsequent  erection  of  a  dwelling-house  on  land  al- 
ready' impressed  with  the  homestead  character,  for  a  purpose 
other  than  a  home  for  the  declarant  and  his  family,  has  been 
held  not  to  affect  the  dwelling  really  occupied.  The  declarant 
remains  the  beneficiary  as  to  his  own  residence.* 

It  has  been  held  that  after  a  homestead  of  the  value  of  one 
thousand  dollars  (the  limit  under  the  applicable  statute)  has 
been  laid  off,  if  the  debtor  increase  its  value  by  building,  his 
creditors  may  reach  the  excess  by  proceeding  in  equity  but 
not  by  execution,*  This  is  not  the  rule  in  every  state.  Ordi- 
narily there  would  be  division  before  sale,  or  a  division  of  the 
proceeds  after  sale  when  the  property  is  indivisible  in  kind. 

A  tenant  at  will,  or  a  lawful  possessor  under  any  title,  who 
is  the  head  of  a  family  and  occupies  the  premises  with  his 
family,  may  have  a  home,  part  of  which  is  held  under  one 
kind  of  title,  and  part  under  another,  and  the  home  be  ex- 
empt ;  *  for  the  parts  constitute  but  one  home.  He  may  have 
a  distinct  home,  and  then  add  to  it,  enlarge  it  by  acquiring 
additional  ground  and  out-buildings,  or  by  constructing  ncAV 

all  V.  Boardman,  53  Vt.  93 ;  True  v.  nan  v.   His  Creditors,  62  Cal.   286 ; 

Morrill,  28  Vt.  672 ;  Randell  v.  Elder,  First  N.  Bank  v.  Masseugili,  80  Ga. 

12  Kas.  260 ;  Schoffen  v.  Landauer,  333 ;  Holland  v.  Withers,  76  Ga.  667 ; 

60  Wis.  334 ;  Hornby  v.  Sikes,  56  Wis.  Reynolds  v.  Hull,  36  la.  394. 

382 ;  Hoffman  v.  Junk,  51  Wis.  613 ;  i  Lubbock  v.  McMann,  82  Cal.  226. 

Kent  V.   Lasley,   48  Wis.    257,  264;  Ub.:  Tiernan  v.  His  Creditors,  62 

Johnson  v.   Harrison,  41   Wis.  386 ;  Cal.  286 ;  Maloney  v.  Hefer,  75  Cal. 

Jarvis  v.  Moe,  38  Wis.  440  ;  Herrick  424 ;  In  re  Allen,  78  Cal.  294. 

V.  Graves,  16  Wis.  157 ;  In  re  Phelan,  3  Lubbock  v.  McMann,  supi'a;  Cal. 

16  Wis.  76;  Casselman  v.  Packard,  Civ.  Code,  §§  1241-3. 

16   Wis.  114;  Bunker  v.    Locke,    15  ^Vanstory  v.  Thornton  (N.  C),  14 

Wis.  635 ;  Phelps  v.  Rooney,  9  Wis.  S.  E.  637. 

70 ;  Houston,  etc.  R.  Co.  v.  Winter,  5  King  v.  Sturges,  56  Miss.  606 ;  Par- 

44  Tex.  597 ;  Ci'ockett  v.  Templeton,  tee  v.  Stewart,  50  Miss.  717 ;  Camp- 

65  Tex.  134;  Garrison  v.  Grant,  57  bell  v.  Adair,  45  Miss.  170 ;  Mosely  v. 

Tex.  602 ;  hi  re  Allen,  78  Cal.  294 ;  Anderson,  40  Miss.  54. 

Maloney  v.  Hefer,  75  Cal.  424 ;  Tier- 


148  DEDICATION. 

apartments  to  his  dwelling;  and  he  may  dedicate  the  whole 
as  one  homestead,  within  legal  limitations. 

Though  the  householder  occupy  a  leased  lot,  he  may  add  by 
purchase  an  adjoining  lot  and  hold  it  by  a  different  title,  and 
occupy  both  as  his  exempt  home,  if  both  constitute  a  single 
residence  with  its  necessary  appurtenances,  provided  he  do 
not  thus  exceed  the  quantitative  and  monetary  limitation.^ 

One  urban  lot  being  the  quantitative  limit,  it  cannot  be  ex- 
tended by  the  erection  of  a  business  block  thereon  which  en- 
croaches upon  an  adjoining  lot,  and  yet  remain  exempt.  Though 
the  family  residence  of  the  owner  was  a  part  of  the  block,  and 
that  part  not  worth  more  than  the  monetary  limit,  the  whole 
block  was  subjected  to  execution,  when  such  extension  had 
been  attempted.- 

A  house  built  for  two  families,  part  occupied  by  the  owner 
and  part  by  his  tenant,  was  held  to  be  not  wholly  exempt.' 

A  husband,  who  has  divided  the  homestead,  giving  his  wife 
half  of  the  exempt  land  which  she  continues  to  occupy,  can- 
not acquire  homestead  right  in  another  tract  of  land ;  but  his 
half  of  the  first  may  remain  exempt  and  still  constitute  part  of 
the  homestead  as  originally  held.^  Were  he  allowed  to  make 
such  an  exchange  at  will,  the  public  would  find  it  difiicult  to 
know  what  part  of  his  landed  estate  could  be  looked  upon  as 
security  when  he  is  trusted.  He  certainly  could  not  have  one 
homestead  and  his  wife  have  another. 

A  man  living  upon  his  wife's  property  as  the  family  home- 
stead cannot  pre-empt  another  one  on  the  public  domain.^ 

If  a  homestead  continues  in  legal  existence  as  an  exempt 
residence  after  the  constitution,  under  which  it  was  estab- 
lished, has  been  superseded,  the  beneficiary  cannot  have  an- 
other set  apart  to  him  under  the  new  constitution.  If  the 
new  one  allows  more  exemption  than  he  already  enjoys,  he 
may  have  his  old  benefit  supplemented.^ 

1  Tyler  v.  Jewett,  82  Ala.  93,   99 ;  adjoining  lot  owned  by  the  same  oc- 

Wassel  V.  Tunnah,  25  Ark.  101 ;  En-  cupant   was     considered    allowable, 

glehardt  v.  Shade,  47  Cal.  627;  Wal-  Geiges  v.  Greiner,  68  Mich,  isa 

ters  V.  People,  18111.  194 ;  S.  C,  65  Am.  <  Crockett  v.    Templeton,   65  Tex. 

Dec.  730.  134.     Compare  Edmonson  v.   Bless- 

2Geney  v.  Maynard,  44  Mich.  579.  ing,  42  Tex.  596. 

3  Dyson  v.   Sheley,    11   Mich.   527.  &  Garrison  v.  Grant,  57  Tex.  602. 

But   a  homestead  projecting  on  an  ^  First  National  Bank  v.  Massen- 


SELECTION    OF   TWO    OR   MORE   TRACTS.  14:9 

§  2.  Selection  of  Two  or  More  Tracts. 

The  separation  of  the  homestead  into  parts,  by  a  street  or 
other  intervening  space,  does  not  confine  the  exemption  right 
to  a  single  part.^  Though  a  homestead  may  be  confined  by  a 
statute  (or  by  the  construction  given  to  a  statute)  to  a  single 
tract  of  land,  yet  that  is  not  universally  required ;  and  it  is 
plain  that  there  may  be  but  one  family  residence  upon  a  farm 
or  town  property,  while  parts  of  the  dwelling  and  appurte- 
nances are  separated.  All,  taken  together,  may  constitute  a 
single  home,  susceptible  of  dedication  as  a  homestead. 

While  the  homestead  is  limited  to  one  tract  or  piece  of  land 
or  one  place  of  abode,^  it  may  be  composed  of  contiguous 
pieces,  and  each  piece  may  be  held  under  a  different  title.* 
And  the  titles  need  not  be  legal,  since  equitable  interest  is 
sufficient,  as  heretofore  shown.^ 

When  homestead  is  limited  in  quantity  by  the  provision 
that  it  shall  not  exceed  a  given  number  of  acres,  the  circum- 
stance that  the  beneficiary  lives  with  his  family  on  a  home- 
stead of  less  than  the  maximum  allowance  is  no  reason  for 
claiming  another  tract  as  exempt  when  it  is  not  contiguous 
to  that  which  he  occupies.^ 

gill,  80  Ga.  333.  Thus,  under  the  15  Kas.  150 ;  Linn  Co.  Bank  v.  Hop- 
Georgia  constitution  of  1868,  exempt-  kins  (Kan  ),  28  P.  606 :  "  Two  tracts 
lug  realty  and  personalty  to  the  of  land  touching  only  at  one  point 
amount  of  $3,000,  Massengill  had  had  are  not  contiguous.  In  the  case  of 
a  "homestead  of  realty  and  person-  Kresin  v.  Mau,  15  Minn.  116  (Gil.  87), 
alty  "  set  off  to  him.  After  the  adop-  it  was  said :  '  Two  tracts  of  land 
tion  of  the  constitution  of  1877,  he  mutually  touchmg  only  at  a  corn- 
had  another  "homestead  of  realty  mon  corner  —  a  mere  point  —  cannot, 
and  personalty  "  set  off  to  him.  The  according  to  any  ordinary  or  author- 
latter  was  held  unauthorized.  Ex-  ized  use  of  language,  be  spoken  of  as 
emption  under  the  latter  is  $1,600  of  constituting  one  body  or  tract  of 
realty  and  personaltj\  He  could  have  land.'  The  same  construction  has 
his  first  homestead  "supplemented  "  been  placed  upon  acts  of  cpngress  in 
to  reach  that  sum,  if  found  below  it  relation  to  the  entry  of  public  lands. 
See  Holland  v.  Withers,  76  Ga.  667.  1   Lester,   Land  Laws,   p.  360.     See, 

1  Acker  v.  Trueland,  56  Miss.  30 ;  also.  Hill  v.  Bacon,  43  111.  477 ;  Ald- 
Parisot  v.  Tucker.  65  Miss.  439.  See  rich  v.  Thurston,  71  111.  324 ;  Thomp- 
Baldwin  v.  Tillery,  62  Miss.  378 ;  Col-  son,  Horaest.  &  Ex.,  §^  120,  145,  147. 
bert  V.  Henley,  64  Miss.  374 ;  Perkins  The  order  of  the  district  judge  dis- 
V.  Quigley,  62  Mo.  498.  charging  the  attachment  levied  upon 

2  Randal  v.  Elder,  12  Kas.  257.  the  S.  W.  J  of  the  N.  E.  i  of  section 

*  Randal  v.  Elder,  12  Kas.  257.  21,  in  township  19,  of  range  24,  should 

*  Chap,  on  Ownership  ;  Tarrant  v.     be  reversed." 

Swain,  15  Kas.  146  ;  Moore  v.  Reaves,        ^  McCrosky  v.   "Walker  (Ark.),   18 


150 


DEDICATION. 


Contiguity  is  not  invariably  required.     A  homestead  may 
include  land  separated  by  an  easement  (such  as  the  right  of 


S.  W.  169.  Cockrill,  C.  J. :  "  The  ap- 
pellant is  the  owner  of  an  undivided 
half  of  a  forty-acre  farm,  upon  which 
he  has  established  a  homestead.  He 
is  also  owner  of  an  undivided  half  of 
a  tract  of  timbered  land,  containing 
one  hundred  and  thirteen  and  one- 
half  aci-es,  distant  one  mile  from  the 
farm.  The  court  found  from  the 
evidence  that  the  last  mentioned 
ti'act  had  long  been  in  use  in  con- 
nection with  the  homestead,  to  sup- 
ply fuel  for  its  use,  but  declared  that 
such  use  did  not  constitute  it  a  part 
of  the  homestead,  and  for  tliat  rea- 
son declined  to  direct  the  clerk  to 
issue  a  supersedeas  to  withhold  it 
from  sale  on  execution, 

"The  only  question  presented  by 
the  appeal  is  whether  a  homestead 
can  embrace  land  a  mile  away  from 
that  upon  which  the  dwelling  is  sit- 
uated, wiien  used  in  connection  with 
the  homestead.  The  courts  divide 
in  their  answers  to  this  query.  In 
Thomp.  Homest.  &  Ex.,  p.  145,  the 
cases  upon  the  two  sides  are  collected, 
and  it  is  there  said  that  '  the  weight 
of  authority  is  that  the  detached 
tracts  of  land,  although  used  and  cul- 
tivated as  a  part  of  the  farm,  form 
no  part  of  the  statutory  homestead.' 
It  is  difficult  to  determine  how  the 
question  stands  on  the  adjudicated 
cases.  Some  of  the  decisions  on  the 
question  are  of  no  value  in  determin- 
ing the  legal  meaning  of  the  term 
'homestead,'  because  they  are  con- 
trolled by  the  phraseology  of  the 
written  law,  which  they  construe. 
There  is  no  express  ruling  upon  the 
point  by  this  court,  but  the  question 
has  been  several  times  most  perti- 
nently adverted  to.  In  the  first  de- 
cision upon  the  question  of  the 
homestead  exemption  in  this  state. 
Chief    Justice    English    defined    a 


homestead  as  'the  place  of  a  home 
or  house ;  that  part  of  a  man's  landed 
property  which  is  about  and  contig- 
uous to  his  dwelling-house.'  Tum- 
linson  v.  Swinney,  22  Ark.  403,  In 
McKenzie  v.  Murphy,  24  Ark.  158, 
Judge  Fairchild,  in  delivering  the 
opinion  of  the  court,  speaks  of  the 
homestead  '  as  the  land,  or  town  or 
city  lot,  upon  which  the  family  resi- 
dence is  situated.'  In  Williams  v. 
Dorris,  31  Ark.  468,  Chief  Justice 
English  treats  the  definition  given  in 
Tumlinson  v.  Swinney  as  applicable 
to  the  provisions  of  the  constitution 
of  1868.  As  late  as  1886,  Judge  Smith, 
in  announcing  the  judgment  of  the 
court  in  McCloy  v.  Arnett,  47  Ark. 
453;  2  S.  W.  Rep.  71,  repeated  the 
same  definition  in  a  case  governed 
by  the  constitution  of  1868,  and  said 
that  that  was  '  the  defined  legal  sense 
of  the  term.'  There  was  nothing  in 
the  phraseology  of  the  act  first  re- 
ferred to,  or  in  the  constitution  of 
1868,  to  restrict  the  meaning  of  the 
term  'homestead.'  The  definition 
thus  frequently  sanctioned  by  the 
judges  of  this  court  is  substantially 
that  given  by  Webster,  Worcester, 
and  the  Imperial  Dictionary,  as  well 
as  by  Burrill,  Bouvier  and  Anderson. 
Id  neither  of  the  cases  cited  was 
there  a  claim  of  a  non-contiguous 
tract  of  the  land  as  a  part  of  the 
homestead,  and,  while  the  cases  may 
be  said  not  to  be  strictly  controlling 
as  authority,  they  are  entitled  to 
great  respect,  as  the  opinions  of  some 
of  the  first  jurists  of  our  bench,  to 
the  effect  that  the  common  accepta- 
tion of  the  term  as  given  by  the  lexi- 
cographers is  also  its  legal  meaning. 
"  We  find  nothing  in  the  constitu- 
tion of  1874,  the  provisions  of  which 
govern  this  cause,  indicating  that  the 
framers  of  that  instrument  intended 


SELECTION    OF   TWO    OK    MOEE    TRACTS. 


151 


way)  into  two  tracts,  3^et  retain  the  exempt  character.*  The 
easement  may  not  be  for  the  benefit  of  the  public.  It  may  be 
necessary  to  the  homestead  holder  in  the  enjoyment  of  his 
own  property.  He  may  require  it  when  other  property  sep- 
arates his  from  a  public  road  or  street.  In  this  respect,  a 
homestead  is  not  different  from  other  real  estate.  So  prem- 
ises may  be  divided  in  the  setting-apart  of  a  homestead, 
though  it  be  necessary  to  create  an  easement  to  enable  one 
having  the  rear  part  of  a  building,  or  tract,  or  lot,  to  have  an 
outlet.^  The  part  assigned  as  a  homestead  would  be  of  little 
value  as  a  home,  unless  the  means  of  ingress  and  egress  were 
provided,  if  its  situation  is  in  the  rear  of  a  lot.  Contiguous 
tracts,  forming  one  plantation,  were  treated  as  a  homestead 
though  only  one  of  them  was  occupied  as  such.* 


to  enlarge  the  commonly-accepted 
meaning  of  the  term.  It  prescribes 
that  the  homestead  of  any  resident 
of  tlie  state  who  is  married  or  the 
head  of  a  family  shall  not  be  subject 
to  lien  or  sale,  with  certain  excep- 
tions, and  that  '  the  homestead  out- 
side of  a  city,  town  or  village,  owned 
and  occupied  as  a  residence,  shall 
consist  of  not  exceeding  one  hundred 
and  sixty  acres  of  land,  with  the  im- 
provements thereon,  to  be  selected  by 
the  owner.'  Art.  9,  g§  3,  4.  The 
privilege  of  selecL«Ion  cannot  be  con- 
sidered an  enlargement  of  the  home- 
stead privilege.  It  is  rather  a  restric- 
tion, for  the  selection  is  limited  to 
lands  upon  which  the  homestead  has 
been  already  impressed,  and  is  in- 
tended as  a  means  of  carving  a  part 
out  of  the  whole  when  the  home- 
stead exceeds  the  area  limited  by  the 
constitution.  Even  where  it  is  held 
that  the  homestead  may  consist  of 
non-contiguovxs  tracts,  a  capricious 
and  unreasonable  selection  of  non- 
contiguous tracts  within  the  home- 
stead area  is  not  permitted.  Jaflfrey 
v.  McGough,  88  Ala.  648;  7  South. 
Rep.  333.  By  tlie  terras  of  the  con- 
stitution,   the    lands    claimed    as    a 


homestead  must  be  '  occupied  as  a 
residence,'  and  it  is  limited  to  a 
given  area,  '  with  the  improvements 
thereon.'  As  the  improvements  must 
comprise  a  dwelling-house,  and  must 
be  upon  the  lands  claimed  as  a  home- 
stead, it  would  seem  to  follow  that 
the  constitution  contemplates  that 
the  homestead  should  be  the  land 
upon  which  the  dwelling  is  situated  ; 
and  that  goes  to  contirm  the  view 
that  the  term  is  used  throughout  in 
its  commonly-defined  sense.  We  eon- 
cur,  therefoi'e,  with  the  circuit  court 
in  the  ruling  that  it  was  not  intended 
that  the  homestead  might  include  a 
tract  of  non-contiguous  land  lying  a 
mile  away  from  that  upon  which  the 
residence  .'s  situated.  From  a  num- 
ber of  cases.  Bunker  v.  Locke,  15 
Wis.  635 ;  Randal  v.  Elder,  12  Kas. 
260;  Kresin  v.  Mau,  15  Minn.  116 
(Gil.  87)  —  may  be  selected  as  stating 
the  reason  for  the  rule." 

1  Allen  V.  Dodson,  39  Kas.  220; 
Randal  v.  Elder,  12  Kas.  257,  S61. 

2  Schaeffer  v.  Beldmeier,  9  Mo.  App. 
445:  McCormick  v.  Bishop,  28  la. 
233 ;  Rhodes  v.  McCormick,  4  la.  368. 

3  Grimes  v.  Portmau,  99  Mo.  229. 


152  DEDICATION. 

They  would  not  generally  be  so  treated.  Non-occupancy 
would  be  fatal  to  any  claim  for  the  inclusion  of  a  tract  ad- 
joining the  farm  actually  used,  in  most  of  the  states.  If  the 
decision  cited  is  to  be  followed  in  the  state  where  it  was  ren- 
dered, it  hardly  will  be  in  others.  Parts  of  a  home  farm  may 
be  devoted  to  pasturage  or  may  lie  idle,  and  yet  the  exemp- 
tion right  remain  unforfeited ;  but,  to  extend  the  exemption 
to  a  contiguous  tract  of  wild  or  neglected  land  seems  unwar- 
ranted by  any  homestead  statute. 

When  the  law  does  not  limit  homestead  to  the  particular 
place  where  the  beneficiary  resides  but  allows  land  appurte- 
nant thereto  to  be  assigned  with  it  as  such,  it  is  not  abso- 
lutely necessary  that  such  land  should  be  adjoining  to  the 
home  tract. ^ 

A  homestead  may  embrace  more  than  one  lot  or  tract.  If 
it  embrace  separate  parcels,  there  must  be  unity  of  use  so  as 
to  constitute  together  one  dwelling  or  residence  or  home 
farm.2  And  this  is  true,  whether  the  different  parcels  be  con- 
tiguous or  not.     The  criterion  is  the  home  character. 

In  selecting  and  dedicating  a  homestead,  the  owner  has  no 
right  to  declare  upon  two  or  more  pieces,  when  he  could 
just  as  well  select  the  allowed  quantity,  having  the  value  per- 
mitted by  statute,  in  one  lot  or  tract.  He  must  not  incom- 
mode others  that  he  may  have  two  or  three  of  the  richer 
fields  of  a  farm  separated  from  each  other.  Homestead  in 
parcels  is  allowable  only  Avhen  necessary. 

Even  if  the  quantitative  limit  has  not  been  reached,  it  can- 
not be  eked  out  by  another  piece  of  land  on  which  a  business, 
not  connected  with,  or  essential  to,  the  homestead,  is  done.^ 
The  owner  is  not  obliged  to  reach  the  inaxiimnn.  It  is  his 
right  to  do  so,  and  very  natural  that  he  should,  but  he  cannot 
disregard  the  condition  that  all  he  selects  must  be  truly  a 
home  for  himself  and  his  family.  The  fact  that  he  and  they 
occupy  one  piece  of  land  will  not  avail  when  the  question 
arises  whether  he  has  complied  with  all  conditions  in  respect 
to  the  others. 

Two  tracts  widely  separated  could  not  be  set  apart  as  the 

1  See  Eiley  v.  Gaines,  14  S.  C.  454.  3  Mouriquand  v.  Hart,  22  Kas.  594 ; 

2  Reynolds  v.  Hull,  36  la,  394.  Garrett  v.  Jones  (Ala.),  10  So.  703. 


SELECTION    OF   TWO   OK   MOKE    TEACTS.  153 

homestead  of  the  widow  from  the  decedent's  property,  it  was 
held.' 

This  probably  would  not  be  so  held  everywhere.  The 
widow's  homestead  is  a  very  different  thing  from  that  which 
the  owner  originally  sets  apart  and  dedicates  as  the  home  of 
his  family.  The  widow,  taking  her  homestead  very  much  as 
she  takes  her  dower,  in  many  of  the  states,  is  not  invariably 
required  to  occupy  it  as  a  condition  of  retaining  it.  When 
not  so  required,  why  may  not  her  portion  as  homestead  con- 
sist of  widely  separated  tracts,  just  as  her  portion  as  dower 
may  be,  when  there  is  any  necessity  for  it? 

There  is  very  good  reason,  however,  why  the  original  dedi- 
cation or  selection  of  a  home  for  the  family  by  its  head, 
should  not  be  that  of  two  widely  separated  tracts.  Both 
could  not  be  occupied  as  a  homestead,  and  thus  an  essential 
condition  to  the  enjoyment  of  the  immunity  from  execution 
would  be  wanting.  Such  disconnected  parcels  are  allowable 
only  where  occupation  is  unnecessary,  or  where,  under  excep- 
tional statutory  provisions,  certain  amounts  in  mone^'"  or  land 
are  saved  to  the  debtor  when  execution  is  pending  against  his 
property  though  no  homestead  has  been  previously  dedicated. 
Such  provisions  create  exemption  rather  than  homestead ;  and 
if  a  given  number  of  acres,  or  a  given  money- value  of  land, 
is  saved  to  him,  it  would  not  matter  that  the  thing  exempt  is 
in  parts  and  they  widely  separated.  The  home  idea  does  not 
enter  into  the  apportionment. 

Where  the  protection  of  the  family  home  is  the  policy  of 
the  legislator  —  not  merely  the  saving  of  a  certain  sum  to 
the  insolvent  debtor  —  the  purpose  is  accomplished  when  the 
household  is  secured  from  disturbance,  though  the  extent  of 
the  allowable  acreage  be  not  covered  by  the  selected  site.  A 
piece  of  land  many  miles  away  from  the  home,  not  cultivated 
or  otherwise  used  for  family  purposes,  is  not  necessar}^  to  the' 
accomplishment  of  the  legislator's  purpose. 

Good  faith  must  be  observed  in  the  selection  of  homestead 
by  the  owner.  Creditors  have  no  notice  of  the  selection  but 
by  his  occupancy  of  the  premises,  in  several  states.     If  he  has 

1  In  re  Armstrong,  80  Cal.  71 ;  King  v.  Gotz,  70  Cal.  236 ;  In  re  Crowey,  71 
Cal.  302 ;  In  re  Noah,  73  Cal.  593. 


154:  DEDICATION. 

an  outlying  tract  in  addition  to  his  home  farm,  how  shall  they 
know  that  they  may  not  trust  him,  looking  to  that  as  secu- 
rity? What  justice  can  there  be  in  letting  him  have  that 
as  a  means  of  credit,  yet  allowing  him  to  claim  it  as  exempt 
when  the  creditor  is  about  to  seize  it? 

The  owner  of  two  lots  lived  with  his  family  in  one  and 
rented  the  other  to  a  tenant.  Apjirehcnsive  that  creditors 
would  attach  the  latter,  he  induced  the  tenant  to  vacate  it ; 
and  he  brought  it  within  his  home  inclosure  on  the  day  before 
attachment  was  really  levied  upon  it ;  and  he  admitted  that 
he  did  so  to  render  it  part  of  his  homestead,  and  for  the  pur. 
pose  of  defeating  his  creditors.  Both  lots  were  held  to  be 
embraced  in  his  homestead.^ 

From  the  time  he  thus  actually  employed  both,  his  home- 
stead included  both,  no  doubt;  but  the  rule  is  not  general  that 
debts  existing  prior  to  dedication  could  be  thus  avoided.  Both 
lots  were  deemed  in  use  as  one  homestead,  when  the  attach- 
ment was  levied,  but  what  notice  had  the  creditor,  at  the  time 
he  trusted  the  debtor,  that  the  rented  property  was  not  liable? 

ISTo  prior,  formal  dedication  and  recordation  of  the  home- 
stead as  such  was  required  by  the  statute  of  the  state  where 
the  cited  decision  was  rendered.  Debtors  there  may  claim  at 
the  eleventh  hour.  Use  is  required,  but  it  may  be  business 
use  as  well  as  home  occupancy,  and  the  use  or  occupancy  may 
begin  just  before  a  levy  with  the  sole  juirpose  of  defeating 
the  levy,  as  this  decision  holds.  Creditors  cannot  be  quite 
sure  that  the  premises  occu})ied  by  the  debtor  are  all  that  will 
prove  exempt  when  pay-day  comes.  There  is  no  notice  of 
any  sort  as  to  what  unoccupied  property  is  good  security,  un- 
less the  debtor  has  already  a  home  of  the  tnaximum  quantity 
or  value. 

§  3.  riatting. 

When  the  dwelling  was  partly  on  forty  acres  belonging  to 
a  husband  and  partly  on  an  equal  tract  belonging  to  his  wife, 
he  could  not  resist  execution  by  injunction,  but  should  have 
resorted  to  the  platting  of  the  land  in  order  to  save  the  parts 
of  the  two  tracts  and  the  residence.'^     That  is,  he  should  have 

1  Milburn  Wagon  Co.  v.  Kennedy,  2  Henderson  v.  Rainbow,  7G  la.  320. 
75  Tex.  213, 


PLATTING.  155 

complied  with  the  law  so  as  to  make  bis  home  reservation 
known  to  creditors.  The  conjunction  of  the  parts  of  the  two 
tracts  may  not  have  made  a  body  of  land  larger  than  the  stat- 
ute allows;  but  how  could  the  public  know  what  ]:>arts  were 
selected?  The  law  governing  the  case  provides  that  the  home- 
stead may  embrace  one  or  more  lots  or  tracts  of  land,  with 
improvements  and  appurtenances,  not  exceeding  half  an  acre 
within  a  town  plat  or  forty  acres  without  such  plat,  unless  the 
value  be  less  than  five  hundred  dollars.  In  such  case,  the 
quantity  may  be  enlarged  to  reach  that  value.  It  cannot  in- 
clude lots  or  tracts  which  are  not  contiguous  unless  they  are 
habitually  used  together,  in  good  faith,  as  one  homestead. 
The  selection  may  be  by  the  owner  (husband  or  wife),  by  mark- 
ing the  bounds  and  giving  description  such  as  is  usual  in  in- 
struments conveying  land,  which  description,  Avith  the  plat, 
shall  be  recorded  in  the  Homestead  Book.  If  the  owner  (hus- 
band or  wife)  fail  to  make,  plat  and  record  as  directed,  he 
does  not  thus  forfeit  the  right  of  exemption ;  but  the  officer 
executing  the  writ  against  the  property  may  cause  the  home- 
stead to  be  marked  off,  platted  and  recorded  at  the  defendant's 
expense.^ 

A  rural  homestead,  circumscribed  by  the  extension  of  town 
boundaries  after  its  dedication,  may  retain  its  former  dimen- 
sion when  not  platted  so  as  to  be  parceled  as  town  lots.- 

"When  corporate  bounds  are  extended  so  as  to  include  a 
rural  homestead,  it  will  not  thus  be  subjected  to  the  urban 
limitation  of  quantity,  though  lands  adjoining  it  be  blocks, 
lots  and  streets.^ 

Part  of  a  rural  homestead,  protruding  within  to\vn  lines,  is 
not  limited  l)y  the  urban  rule  when  the  land  has  not  been 
platted  and  does  not  abut  on  a  street.  Used  for  agricultural 
purposes  and  a  home  for  years,  it  does  not  necessarily  lose  its 
exemption  character  or  its  rural  advantages  because  of  the 
encroachment  of  the  town  upon  it.* 

1  McClain's  Code  of  Iowa,  §§  3163  » Posey  v.  Bass,  77  Tex.  512 ;  Bas- 

et  seq.  sett  v.  Messner,  30  Tex.  604 ;  Nolan 

^Finley    v.    Dietrick,   12    la.   516;  v.  Reed,  38  Tex.  426. 

McDaniel  v.  Mace,  47  la.  519 ;  Truax  ^  Beyer  v.  Thomeug  (la.),  46  N.  W. 

V.  Pool,  46  la.  256 :  the  town  not  be-  1074 ;  McDaniel  v.  Mace,  47  la.  509. 
ing  incorporated,  the  country  quan- 
tity allowed. 


156  DEDICATION. 

When  the  statute  exempts  "one  lot,"  "two  lots,"  "half  a 
lot,"  etc.,  in  any  incorporated  town,  the  lot  is  understood  to 
be  such  a  one  as  the  plat  of  the  town  shows.* 

Platting  city  lots  is  not  everywhere  made  essential  to  the 
dedication  of  a  homestead  within  the  corporate  limits.  It 
may  be  postponed  till  the  ground  has  been  levied  upon,  when 
it  will  be  the  duty  of  the  seizing  and  selling  officer  to  have 
the  platting  done  and  the  homestead  officially  set  apart.  Mean- 
while the  householder  is  under  the  protection  of  the  home- 
stead law.- 

If  the  law  does  not  make  the  selecting,  platting  and  record- 
ing of  the  homestead  an  essential  to  the  beneficiary's  enjoy- 
ment of  the  privilege  of  exemption,  he  may  occupy  his  home 
and  let  such  acts  alone  till  his  land  is  levied  upon,  or  about  to 
be.  He  may  then  claim,  and  make  it  the  duty  of  the  seizing 
officer  to  have  the  platting  and  recording  done.  He  is  not 
deemed  guilty  of  laches  by  such  delay,  and  he  forfeits  none  of 
his  rights.^ 

Sale  by  the  officer  without  platting  when  demanded  strikes 
with  nullity  not  only  the  adjudication  of  the  exempt  portion 
of  the  property  but  that  of  any  other  that  might  have  formed 
a  portion  of  the  homestead,*  Recording  of  the  platting  is  es- 
sential to  the  validity  of  the  sale.^ 

But,  since  the  statute  requiring  platting  is  directory,  it  is 
held  that  if  the  owner  and  the  officer  fail  to  designate  the 
homestead  before  execution,  the  sale  of  that  with  other  land 
will  not  be  void,  even  if  it  be  voidable.^  If  both  husband  and 
wife  join  in  the  conveyance,  there  is  no  need  of  platting.'' 

A  farm,  jutting  into  an  incorporated  village,  with  the  dwell- 
ing-house within  the  village  lines,  may  yet  be  accounted  a 
rural  homestead,  when  the  part  thus  protruding  has  not  been 

1  Wilson  V.  Proctor,  28  Minn.  13;  Hart,  63  la.  620 ;  Goodrich  v.  Brown, 

Lundberg  v.  Sharvey,  46  Minn.  350.  63  la.  247 ;  Visek  v.  Doolittle,  69  la, 

2Sargeantv.  Chubbuck,  19  la.  37.  602. 

3  Sargeant  v.  Chubbuck,  19  la.  37 ;  5  White  v.  Eowley,  46  la.  680. 

Nye  V.  Walliker,  46  la.  306 ;  Linscott  <*  Newman  v.  Franklin,  69  la.  244 ; 

V.  Laniart,  46  la.  312 ;  Green  v.  Far-  Martin   v.    Knapp,   57   la.   336.     See 

rar,  53  la.  426.  Brumbaugh  v.  Zollinger,  59  la.  384. 

^Linscart  v.  Lamart,  46   la.  312;  ,See  Farr  v.  Reilly,  58  la.  399. 

White  V.  Rowley,  46  la.  680;  Lowell  '  Quinn  v.  Brown,  71  la.  376. 
V,  Shannon,  60   la.  713;    Owens   v. 


PLATTING.  15Y 

platted.^  It  is  generally  the  duty  of  an  owner  occupying 
more  acreage  than  the  law  exempts,  to  have  it  platted,  where 
the  law  prescribes  the  mode,  or  directs  it  to  be  done;  but 
neglect  to  do  so  is  not  necessarily  fatal  to  the  exemption 
right.^ 

The  requirement  that  the  homestead  shall  be  reserved,  or 
set  off  from  non-exempt  property,  has  been  held  a  condition 
to  the  enjoyment  of  the  exemption  privilege;  so  that,  upon 
neglect  of  it,  the  whole  property  will  continue  to  be  liable.' 

Where  exemption  takes  effect  by  operation  of  law,  without 
any  act  on  the  part  of  the  beneficiary,  creditors  cannot  avail 
themselves  of  the  debtor's  acts  or  neglects  relative  to  home- 
stead selection.* 

The  laying  off,  or  designating  by.  metes  and  bounds,  certain 
land  as  homestead,  is  not  a  necessary  act  in  the  creation  of  a 
homestead  right.  It  makes  certain  what  is  to  be  held  exempt ; 
and,  when  the  owner  is  in  possession  of  other  landed  prop- 
erty, it  may  be  necessary  that  the  particular  acreage,  which  is 
to  be  held  with  his  family  dwelling-house,  should  be  distinctly 
selected  and  made  known  to  creditors.  If,  however,  only  the 
number  of  exempt  acres  is  owned  by  him,  and  the  law  accords 
him  such  exemption  without  making  the  platting,  or  setting 
of  it  out,  a  condition,  he  may  simply  occupy  it  and  hold  it 
free  from  any  judgment  rendered  on  any  ordinary  debt  after 
the  beginning  of  his  occupancy  of  it,'' 

1  Orr  V.  Doughty,  51  Ark.  527.  Carley,  26  S.  C.  1.     A  judgment  bears 

2  When  land  in  greater  quantity  no  Hen  on  such  land.  J&.;  Duncan  v. 
than  that  which  the  law  exempts  is  Barnett,  11  S.  C.  333,  distinguished. 
owned  by  the  head  of  a  family,  he  On  waiver,  see  Agnew  v.  Adams,  26 
should  have  the  prescribed  quantity  S.  C.  101.  Occupancy  is  not  neces- 
laid  out,  platted,  and  the  plat  re-  sary  to  a  claim  of  homestead  in  that 
corded,  in  Georgia.  Pritchard  v.  state.  Nance  v.  Hill,  26  S.  C.  227 ; 
Ward,  64  Ga,  446.  Swandale  v.  Swandale,  25  S.  C.  389. 

3  Spoon  V.  Reid,  78  N.  C.  244 ;  If  the  homestead  be  worth  more  than 
Nichol  V.  Davidson,  8  Lea,  389 ;  Gaines  $1,000,  the  debtor  may  pay  the  excess, 
V.  Exchange  Bank,  64  Tex.  18.  sixty  days  after  litigation  over  the  ap- 

*  In  South  Carolina,  no  declaration  praisement  has  ceased.      Simonds  v. 

or  formal  selection  of  a  homestead  is  Haithcock,  26  S.  C.  595.     Notice  of 

required.     The  owner  of  land  worth  exceptions  filed  to  appraisement  by 

no  more  than  $1,000  has  it  exempt  by  judgment    creditors    need    not    be 

law.     He  cannot  waive  the  exemp-  served  on  the  judgment  debtor,  who 

tion  in  favor  of  creditors.    Myers  v.  is  a  party.    Ex  parte  Ellis,  20  S.  C.  344. 

Ham,  20  S.  C.  522;  Ketchiu  v.  Mc-  SKetchen  v.  McCarley  (S.  C.)  11  S. 


158  DEDICATION. 

It  has  been  held  that  in  an  action  to  recover  land  bought 
by  the  plaintiff  at  an  execution  sale,  under  a  judgment  on  a 
note,  advantage  can  be  taken  of  the  fact  that  homestead  was 
not  laid  off;  though  the  defendant  did  not  specially  claim  it. 
The  court  said :  "  It  appears  from  the  evidence  offered  by  the 
plaintiff  [the  purchaser]  that  no  homestead  was  laid  off,  and 
that  the  land  was  all  that  the  judgment  debtor  owned.  . 
The  debt  was  presumably  of  the  date  of  the  judgment."  ^  It 
therefore  became  material  to  show  the  date  of  the  note.^  The 
judge  stated  incidentally,  as  a  fact  found,  that  the  indebted- 
ness was  contracted  prior  to  1868. 

§  4.  Form  of  the  Land  Selected. 

Land  should  be  selected  so  that  the  number  of  acres  be 
embraced  in  a  compact  body,  when  practicable,  and  not  pur- 
posely  laid  out  in  an  irregular  shape  to  secure  the  most  valu- 
able tract  within  the  limited  quantity.*  But  the  use  made  of 
the  land  may  be  such  that  a  disconnected  piece  may  be  con- 
sidered to  form  a  part  of  the  main  portion  of  the  homestead." 

As  far  as  practicable,  the  legal  subdivisions  of  land  by  the 
surve3^s  of  the  general  government  should  be  observed  in  the 
selection  of  a  state  homestead,  when  a  half  or  quarter  or 
eijrhth  or  sixteenth  of  a  section  is  the  limit.*^  This  is  not  a 
fixed  rule  but  it  is  favored  by  the  courts,  rather  than  the 
will  of  the  debtor  to  select  a  very  irregular  tract  from  selfish 
motives.  It  is  not  a  rule  to  be  followed  w^ien  it  works  un- 
reasonably.^ 

Judge  Somerville  humorously  says :  "  A  homestead,  if  we 
could  suppose  such  a  case,  fenced  in  the  shape  of  an  animal,  a 

E.  1099 ;  Cantrell  v.  Fowler,  24  S.  C.  83  Ala.  93 :  Houston,  etc.  R  Co.  v. 

434  Windsor,  44  Tex.  597,011;  Prior  v. 

1  Buie  V.  Scott.  107  N.  C.  181 ;  Mob-  Stone,  19  Tex.  371 ;  S.  C,  70  Am.  Dec. 
ley  V.  Griffin,  104  N.  C.  113.  350 ;  Gregg  v.  Bostwick,  33  Gal.  230 ; 

2  Hill  T.  Oxendine,  79  N.  C.  331;  Perkins  v.  Quigley,  63  Mo.  498 ;  Hoitt 
Mebane  v.  Layton,  89  N.  C.  396.  v.  Webb,   36  N.   H.  158 ;  Buxton  v. 

3  Mobley  v.  Griffin,  104  N.  C.  112 ;  Dearborn,  46  N.  H.  43 ;  Greely  v. 
McCracken  v.  Adler,  98  N.  C.  400.  Scott,  3  Woods,  657 ;  Hubbard  v.  Can- 

^  Jafifrey  v.  McGough,  88  Ala.  648;  ady,  58  III.  425;  Stevens  v.  Hollings- 

Kresin  v.  Mony,  15  Minn.  116.  worth,  74  111.  203. 

Ub.;  David  v.  David,  56  Ala.  49;  ejaffrey  v.  McGough,  88  Ala.  648, 

Alford  V.  Alford,  88  Ala.  656;  Discus  652;  Aldrich  v.  Thurston,  71  III.  324 

V.  Hall,  83  Ala.  159 ;  Tyler  v.  Jewett,  '  Kent  v.  Agard,  22  Wis.  150. 


FOKM    OF    LAND    SELECTED.  159 

bird,  a  flower-garden,  or  other  fantastic  sliape,  would  not  cease 
to  be  exempt  from  execution  on  this  account,  provided  it  be 
of  lawful  area  and  value,  and  the  entire  tract  owned  was  in 
this  particular  form ;  although  it  is  manifest  that  a  selection 
in  these  quaint  forms,  made  from  a  large  tract  of  land,  would 
be  unreasonable  and  capricious,  and  not  allowable.  If  so,  like 
the  cloud  described  by  Hamlet  to  Polonius,  it  might  just  as 
well  be  '  the  shape  of  a  camel,'  a  '  weasel,'  or  a  '  whale,'  as  in 
any  other  that  might  be  dictated  by  the  fancy  of  the  person 
making  the  selection."  ^ 

Judicial  notice  should  be  taken  of  the  fact  that  government 
land  is  parceled  in  sections,  and  half  and  quarter  sections,  etc., 
and  that  city  property  is  platted  and  divided  into  squares  and 
lots.  And  if  a  homestead  claimant  has  his  home  and  farm  on 
a  forty-acre  tract,  for  instance,  and  that  tract  is  about  the 
monetary  limit  of  exemption,  or  within  it,  the  court  will  deem 
that  his  homestead  rather  than  parts  of  it  and  of  another 
tract.  So,  if  there  {jre  several  lots,  the  one  occupied  by  hira, 
of  the  proper  value,  will  be  understood  as  his  homestead; 
and  an  adjoining  lot  will  not  be  included  with  it  so  as  to 
render  the  value  greater  than  the  amount  legally  exempted.^ 
But  if  one  adjoining  lot,  or  more,  are  used  with  that  on  which 
the  dwelling  stands  for  home  purposes,  and  all  together  do 
not  exceed  in  value  the  statutory  limitation,  they  may  all  be 
exem])t.^ 

In  the  older  states,  where  boundaries  are  irregular,  follow- 
ing running  streams  or  other  meandering  lines,  it  will  be 
found  impracticable  to  confine  the  homestead,  limited  to  a 
given  number  of  acres,  to  squares  or  oblong  forms,  as  may  be 
readily  done  in  the  newer  states  where  the  land  is  laid  off 
originally  in  sections.  But  it  should  never  be  allowed  the 
homesteader  to  cut  a  tract  into  such  a  shape  as  to  injure  the 
remaining  land  for  no  other  purpose  than  to  give  himself 
the  richest  part  of  it.  Suppose  he  should  select  forty  acres, 
in  the  form  of  a  cross,  with  an  acre's  width  to  the  upright  and 
to  the  horizontal  piece,  carving  this  out  of  a  plantation  of 

1  Jaffrey  v.  McGough,  88  Ala.  651.     581 ;  Hill  v.  Bacon,  43  111.  478 ;  Ald- 

2  Brock   V.    Leighton,   11    Bradw.     rich  v.  Thurston,  71  111.  324. 

(111.  Api).)  3C1 ;   Gardner  v.  Eberhart,        3  Boyd  v.  Fullerton,  185  III.  437. 
83  111.  310;  Raber  v.  Gund,  110  111. 


]  00  DEDICATION. 

many  hundred  acres:  would  any  court  countenance  it?  This 
is  an  extreme  case  supposed ;  but  there  may  be  selections 
approaching  to  such  an  absurdity,  such  as  that  condemned  by 
Judge  Somerville,  above  noticed.  In  the  absence  of  any  stat- 
ute prescribing  the  form  of  the  homestead,  courts  ought  never 
to  permit  a  selection  manifestly  made  in  disregard  of  the  rights 
of  others.  Creditors  are  interested  in  the  parts  of  a  tract 
which  are  not  exempt;  and  it  never  was  the  intent  of  the 
legislator  to  cut  them  off  from  their  remedv  against  non- 
exempt  property  while  protecting  a  limited  quantity  as  a 
homestead.  While  the  confinement  of  a  homestead  to  the 
regular  shape  of  quarter  or  half  sections  of  land,  or  to  the 
form  of  city  lots,  as  suggested  hy  the  learned  judge  quoted,  is 
not  a  rule  because  not  everywhere  practicable,  it  may  be  laid 
down  as  a  rule  that  one  authorized  to  select,  declare  and  re- 
cord a  homestead  within  a  quantitative  limitation,  cannot  be 
permitted  to  carve  it  out  of  his  land  in  such  form  as  to  leave 
the  remainder  worthless  or  to  impair  its  value  so  that  credit- 
ors shall  be  injured. 

§5.  Declaration  —  Methods. 

Dedication  may  be  by  declaring  and  recording,  or  simply 
by  occupancy.  The  condition  of  dedication  is  necessary  to 
the  acquisition  of  the  homestead  character,  in  every  state 
where  there  is  a  homestead  law,  though  there  is  exemption, 
in  a  few  others,  without  it  —  exemption  without  recognition 
of  the  technical  homestead.  In  the  majority  of  the  homestead 
states,  the  only  dedication  required  is  family  occupancy,  l^o 
selection  and  declaration  are  necessary,  in  these,  to  the  acqui- 
sition of  the  householder's  right  and  privilege ;  and  he  need 
not  make  claim,  or  have  his  exempt  home  set  apart  from  the 
rest  of  his  real  estate,  till  judgment  against  him,  or  some 
other  cause,  shall  have  rendered  it  necessary  for  him  to  ask 
that  it  be  set  apart  to  him  by  the  court. 

In  a  minority  of  the  homestead  states,  it  is  required  that, 
in  addition  to  occupancy,  there  must  be  selection,  declaration 
and  recordation  before  the  premises  occupied  can  be  invested 
with  the  homestead  character.  Each  of  the  following  para- 
graphs explains  a  method : 

The  declaration  of  homestead  must  be  executed  and  ac- 


DECLARATION  :    METHODS.  161 

knowledged  and  recorded  like  the  grant  of  real  property.  It 
must  show  that  the  declarant  is  the  head  of  a  family,  or  the 
wife  of  one  who  makes  the  declaration  for  the  joint  benefit 
of  herself  and  her  husband,  and  that  the  latter  has  not  made 
a  declaration;  that  the  declarant  resides  on  the  premises 
claimed  as  a  homestead;  and  there  must  be  a  description  of 
the  property  claimed,  and  a  statement  of  its  value  in  cash.^ 

The  selection  of  the  homestead  by  the  owner,  husband  or 
wife,  is  made  by  marking  the  bounds  and  giving  description 
such  as  is  usual  in  instruments  conveying  land,  which  descrip- 
tion, with  the  plat,  shall  be  recorded  in  the  Homestead  Book 
provided  for  the  purpose.^ 

A  conveyance  of  the  property,  stating  that  it  is  designed 
to  be  held  as  a  homestead  exempt  from  sale  on  execution, 
must  be  recorded ;  or,  a  notice  with  a  description  of  the  prop- 
erty, so  stating,  written,  acknowledged  and  subscribed  by  the 
owner,  as  a  deed,  must  be  recorded  in  the  Homestead  Exemp- 
tion Book  of  the  county.  Like  property,  owned  by  a  married 
woman  and  occupied  by  her  as  a  residence,  may  be  designated 
in  like  manner,  with  like  effect.' 

The  homestead  consisting  of  land  and  a  dwelling,  worth  not 
exceeding  five  thousand  dollars,  ma}^  be  selected  by  the  hus- 
band or  wife,  or  by  both,  or  by  other  head  of  a  family.  The 
declaration  must  be  written,  stating  the  declarant  to  be  the 
head  of  a  family  (or  married  to  one),  residing  with  the  family 
on  the  selected  premises ;  and  it  must  contain  a  description  of 
the  property.  It  must  be  signed  and  acknowledged  by  the 
declarant,  and  recorded  as  a  conveyance  is  required  to  be.* 

To  entitle  any  person  to  the  benefit  of  the  homestead  act, 
he  shall  cause  the  word  homestead  to  be  entered  of  record  on 
the  margin  of  his  recorded  title.'^ 

Any  one  claiming  homestead  may,  at  any  time,  make  a  writ- 
ten declaration,  signed  by  the  declarant,  stating  the  property 
selected  and  claimed  as  exempt,  which  must  be  filed  for  rec- 
ord in  the  office  of  the  probate  court  of  the  county  in  which 

I  Deering's    Annotated  Code   and  ^  Throop's  An.  Code  of  New  York, 

Stat,  of  Cal,  §§  1237  et  seq.;  Revised  §§  1397-1404. 

Stat.  Idaho,  §§  3035  et  seq.  *  Genl.  Stat  of  Nevada,  1885,  §  589. 

•^  McClain's  Code  of  Iowa,  §§  3163  5  Qen.  Laws  of  Colorado,  ch.  76,  §  3. 
et  seq. 

11 


1G2  DEDICATION, 

the  property  is  situated.  The  filing  of  such  declaration  for 
record  shall  operate  as  notice  of  its  contents.^ 

The  claimant  may  file,  in  the  registry  of  deeds  in  the  county 
or  district  where  the  land  lies,  a  certificate  signed  by  him  de- 
claring his  wish  to  have  exemption,  and  describing  the  land 
and  buildings ;  and  the  register  shall  record  it  in  a  book  kept 
for  that  purpose.- 

To  be  entitled  to  the  full  benefit  of  a  homestead  exempt 
from  levy,  seizure,  garnisheeing  or  sale,  the  householder  or 
head  of  a  family  shall  declare,  by  deed  duly  recorded  in  the 
deed-book  of  the  county  in  which  such  homestead  or  the 
greater  part  thereof  is  situated,  his  intention  to  claim  such 
homestead,  with  a  description  of  the  property  so  claimed.  If 
such  intent  is  expressed  in  the  deed  or  will  conveying  such 
property,  it  shall  not  be  necessary  for  the  householder  or  head 
of  the  family  to  execute  a  deed  declaring  such  intent.' 

"  The  owner  or  the  husband  or  wife  may  select  the  home- 
stead and  cause  it  to  be  marked  out  and  platted."  .  .  .It 
"  shall  be  marked  off  by  fixed  and  visible  monuments,  unless 
the  same  shall  embrace  the  whole  of  a  subdivision  or  lot,  and 
in  giving  the  description  thereof,  when  marked  off  as  afore- 
said, the  direction  and  distance  of  the  starting  point  from 
some  corner  of  the  dwelling-house  shall  be  stated.  The  de- 
scription of  the  homestead,  certified  and  acknowledged  by  the 
owner,  shall  be  recorded  by  the  register  of  deeds  of  the  proper 
county  in  a  book  called  the  '  homestead  book,'  which  shall  be 
provided  with  a  proper  index."  If  the  owner  fail  to  mark 
and  record  as  directed,  his  right  is  not  lost,  as  an  officer  in 
charge  of  an  execution  against  the  property  of  the  householder 
may  mark,  plat  and  record  the  homestead.'* 

The  homestead  of  the  householder  becomes  exempt  upon 
its  occupancy  by  him  and  his  family  from  the  date  of  the  re- 
cording of  his  deed ;  but  "  any  married  woman  may  file  her 
claim  to  the  tract  or  lot  of  land  occupied  by  her  and  her  hus- 
band, or  by  her,  if  abandoned  by  her  husband,  as  a  home- 
stead ;  said  claim  shall  set  forth  the  tract  or  lot  claimed,  that 

1  Code  of  Alabama,  §  2828.  of  West  Va.  1881,  ch.    19,  §§  32-3; 

2  Rev.  Stat,  of  Maine,  ch.  81,  §  61.        Warth's  Code,  ch.  41. 

■i  Code  of  Virginia,  ch.  183,  §  4 ;  Acts        *  Compiled  Laws  of  Dakota  (1887), 

§§  2458-9. 


declaration:  requisites.  163 

she  is  the  wife  of  the  person  in  whose  name  the  tract  or  lot 
appears  of  record,  and  said  claim  shall  be  acknowledged  by 
her  before  some  officer  authorized  to  take  proof  or  acknowl- 
ment  of  instruments  of  writing  affecting  real  estate,  and  be 
filed  in  the  recorder's  office."  The  effect  of  her  recorded  dec- 
laration is  to  restrain  her  husband  from  alienating  without 
her  joinder.' 

A  homestead  holder,  to  avoid  loss  of  the  exemption  privi- 
lege when  about  to  be  absent  for  more  than  six  months,  may 
save  it  by  notice  of  his  claim  containing  a  description  of  the 
property,  duly  subscribed  and  acknowledged,  and  filed  in  the 
office  of  the  register  of  deeds  of  the  county  where  his  home- 
stead is  situated.- 

A  homestead,  not  exceeding  one  thousand  dollars  in  value, 
may  be  selected  by  the  owner  who  occupies  it  with  his  family 
as  a  home,  at  any  time  before  sale.  The  wife  may  select  when 
the  husband  neglects  or  refuses  to  do  it.^ 

§  6.  Declaratiou :  Requisites. 

Where  exemption  is  a  constitutional  right,  incident  to  home- 
stead, and  there  is  no  monetary  limit  fixed  to  it  by  the  consti- 
tution, the  legislature  may  yet  make  a  statutory  limitation, 
and  prescribe  the  means  by  which  the  debtor  may  avail  him- 
self of  the  benefit.* 

Where  the  constitution  or  law^  of  a  state  requires  that  the 
legal  homestead  quantum  shall  be  regularly  set  apart  when 
there  is  more  than  that  amount  of  land  in  the  occupied  tract, 
the  widow  of  a  debtor  whose  whole  plantation  had  been  sold 
for  debt  could  not  eject  the  purchaser  on  the  ground  of  her 
homestead  claim.  The  deceased  debtor  had  never  caused  his 
eighty  acres  to  be  set  apart  from  the  tract,  and  that  neglect 
left  her  without  homestead  right,  after  the  sale.^ 

Declaration  of  homestead,  where  it  is  required  by  statute, 
must  be  made  in  form  sufficient  to  comply  with  the  require- 
ment, and  must  state  that  the  declarant  and  his  family  reside 

1  Rev.  Stat  of  Missouri.  1889,  §5435;        *  Const  Cat    XVII,  1;  Civ.  Code 

Gen.  Stat  of  Vermont  ch.  68,  §  7.  Cal,  §  1237 ;  Lubbock  v.  McMann,  82 

-  Gen.  Stat  of  Minnesota,  ch.  68,  Cal.  226 :  Ham  v.  Santa  Rosa  Bank, 

t^  9,  p.  768.  62  Cal.  138 ;  S.  C,  45  Am.  Rep.  654. 

3  Code  of  Washington,  1881,  §§  342,  s  Clancy  v.  Stephens  (Ala.),  9  So.  522. 
2415. 


164  DPJDICATION. 

on  the  premises.^  Without  this  statement  made  and  filed, 
the  declarant  cannot  be  heard  to  prove  by  other  evidence  that 
he  and  his  family  were  occupants  when  a  conveyance  was 
made  in  contravention  of  the  homestead  right.- 

It  would  be  of  no  legal  significance  to  file  notice  of  an  in- 
tention to  declare  and  occupy.^  This  would  be  no  such  notifi- 
cation as  the  legislator  designed;  would  not  be  a  compliance 
with  any.law.  And,  in  the  absence  of  notice,  when  that  is  re- 
quired, there  can  be  no  homestead.* 

Where  the  beneficiary  is  required  to  file  a  declaration  and 
claim  of  homestead  in  a  designated  office,  or  with  a  certain 
officer,  his  failure  to  do  so  will  cut  him  oif  from  defending  his 
temporary  absence  or  his  limited  leasing  of  the  premises  when 
the  question  of  his  abandonment  of  them  is  raised.  He  will 
be  deemed  never  to  have  acquired  the  exemption,  or  deemed 
to  have  forfeited  his  right.^  He  must  not  only  file  his  decla- 
ration at  the  proper  place,  but  in  time  to  avail  himself  of  ex- 
emption.^ 

When  the  declaration  is  on  a  wife's  separate  property,  her 
examination  and  acknowledgment  must  be  in  strict  compli- 
ance with  the  law,  to  bind  her.''  But  when  partly  on  her 
separate  property  and  partly  on  community,  and  the  declara- 
tion is  made  by  herself,  she  may  be  presumed  to  have  con- 
sented to  the  filing  of  it  on  her  separate  property.^ 

A  joint  declaration  that  the  homestead  to  a  given  amount 
was  acquired  and  improved  with  the  husband's  separate  means 
may  be  adduced  in  evidence  against  the  wife  as  tending  to 
remove  the  presumption  that  the  homestead  is  community 
property,  though  it  may  not  wholly  overcome  it.^     She  is  not 

1  Borehani  v.  Byrne,  83  Cal.  28 ;  5  Murphy  v.  Hunt,  75  Ala.  438,  441 ; 
Lubbock  V.   McMann,  83  Cal.   336;     Boyle  v.  Shulman,  59  Ala.  566. 

In  re  Allen,  78  Cal.  294;  Malony  v.  6  Estate  of  Reed,  83  Cal.  410;  Bar- 

Hefer,    75    Cal.    424 ;    Laughlin    v.  tholomew  v.  Hook,  33  Cal.  377. 

Wright,   63    Cal.    113;    Prescott    v.  7  Beck    v,    Soward,  76    Cal.    527; 

Prescott,  45  Cal.  58 ;  First  Nat.  Bank  Hutchinson  v.  Ainsworth,  63  Cal.  286 ; 

of  San  Luis  Obispo  v.  Bruce  (Cal.),  29  Cal.  Civ.  Code,  §  1186 ;  Wedel  v.  Her- 

P.  488;  Lee  v.  Miller,   11  Allen,  37;  man,  59  Cal.    513.    ^See  Clements  v. 

Cole  V.  Gill,  14  la.  537 ;  Alley  v.  Bay,  Stanton,  47  Cal.  60,  rendered  before 

9  la,  509 ;  Yost  v.  Devault,  9  la.  60.  §  1186  was  adopted.     {See  §  1191.) 

2  Boreham  v.  Byrne,  83  Cal.  23.  «  Arendt  v.  Mace,  76  Cal.  315. 

8  Cook  V.  McChristian,  4  Cal.  23.  »  Estate  of  Bauer,  79  CaL  304;  Duff 

« Noble  V.  Hook,  24  Cal.  639.  v.  Duff,  71  Cal.  513. 


DECLAKATION  :    REQUISITES. 


165 


estopped  by  such  declaration  from  resorting  to  other  evidence 
to  show  her  rights  in  the  propert3^^ 

The  declarant  of  homestead  must  conform  to  law,^  and  act 
jointly  with  his  wife  in  creating  the  homestead  where  so  re- 
quired.' 

Declaration  of  homestead  may  be  proved  by  a  duly-certified 
transcript  of  it,  with  the  declarant's  affidavit  attached.^ 

The  requirement  that  the  value  must  be  stated  in  the  dec- 
laration is  substantially  satisfied  by  the  allegation  that  it  does 
not  exceed  the  statutory  limit.*  The  estimate  at  a  fixed  sum, 
under  the  limit,  complies  with  the  law.^  When  such  estimate 
was  qualified  with  the  word  "  about,"  it  was  held  sufficient.'' 
But  a  declaration  without  a  statement  of  value  is  void,^  and 
one  estimating  the  value  above  the  monetary  limit  is  defective,* 
where  the  statute  requires  an  estimate  in  the  declaration. 

A  declaration  without  occupancy  at  the  time  of  its  filing  is 
nugatory  where  the  statute  requires  the  two  conditions  to  be 
observed  simultaneously.'" 


1  lb.  See  Anthony  v.  Chapman,  05 
Cal.  73 :  Carter  v.  McManus,  15  La. 
Ann.  676 ;  Werkheiser  v.  Werkheiser, 
3  Rawle.  326. 

'^  In  Virginia,  there  is  no  homestead 
exemption  unless  it  is  claimed  and  set 
apart  according  to  law.  Wray  v.  Dav- 
enport, 79  Va.  19. 

3  The  husband  alone  could  not  cre- 
ate homestead  in  California  under  the 
act  of  1860  (Stats.  1860,  p.  311), 
amended  by  act  of  1862  (Acts  1862, 
p.  519).  Gambette  v.  Brook,  41  Cal.  83 ; 
Boreham  v.  Byrne,  83  Cal.  23. 

<  Stevenson  v.  Moody,  85  Ala.  33 
{withdrawing  the  case  of  the  same 
title  in  83  Ala.  418) ;  Code,  §  2788. 

*  Schuyler  v.  Broughton,  76  Cal. 
524. 

6  Read  v.  Rahm,  65  Cal.  343. 

7  Graves  v.  Baker,  68  Cal.  134. 

8  Ashley  v.  Olmstead,  54  Cal.  616. 

9  Ames  V.  Eldred,  55  Cal.  136. 

10  Fromans  v.  Mahlman  (Cal.),  27  P. 
1095.  The  court,  after  stating  facts, 
said :  "  It  is  settled  law  in  this  state 


that  to  constitute  a  valid  homestead, 
the  claimant  must  actually  reside  on 
premises  when  the  declaration  is 
filed.  Prescott  v.  Prescott,  45  Cal.  58 ; 
Babcock  v.  Gebbs,  52  Cal.  629 ;  Aucker 
V.  McCoy,  56  Cal.  524;  Pfister  v. 
Dascey,  68  Cal.  572 ;  10  Pac.  Rep.  117 ; 
Lubbock  V.  McMann,  82  Cal.  228 ;  23 
Pac.  Rep.  1145.  The  question,  then, 
is,  does  the  evidence  show  that  Mrs. 
Mahlman  was  actually  residing  on 
the  premises  in  controversy  when  she 
filed  her  declaration  of  homestead? 
We  are  unable  to  see  how  this  ques- 
tion can  be  answered  otherwise  than 
in  the  negative.  The  obvious  pur- 
pose of  the  statute  in  providing  for 
the  selection  of  a  homestead  was  to 
thereby  make  a  home  for  the  family, 
which  neither  of  the  spouses  could 
incumber  or  dispose  of  without  the 
consent  of  the  other,  and  which 
should  at  all  times  be  protected 
against  creditoi's.  To  effect  its  pur- 
pose the  statute  has  been  liberally 
construed  in  some  respects,  but  the 


166  DEDICATION. 

To  ascertain  whether  the  property  claimed  as  exempt  is 
within  the  monetary  limit,  it  must  be  appraised  as  though  the 
claimant  held  title  in  fee.  He  may  have  far  less  —  a  life  in- 
terest —  a  leasehold  — but  he  is  not  entitled  to  have  a  greater 
quantity  of  property  removed  from  liability  for  debt,  on  that 
account.  His  boundaries  do  not  enlarge  as  his  title  grows 
less.^ 

The  provision  which  allows  exemption  to  a  given  amount 
in  the  dwelling  and  land  constituting  the  home,  "  owned  by 
the  debtor  "  and  to  be  "  set  apart  to  him,"  has  been  expounded 
so  as  to  allow  the  husband  the  full  benefit  from  his  share  of  a 
jointly  owned  homestead  by  himself  and  his  wife;  to  entitle 
him  to  the  entire  exemption  out  of  his  interest  without  estimat- 
ing that  of  his  wife.  It  is  reasoned  that  though  there  can  be 
no  mortgage  or  release  of  the  homestead  without  the  wife's 
signature  and  acknowledgment ;  and  though  she  succeeds  to 
the  homestead,  as  exempted,  during  her  occupancy  after  his 
death,  yet  the  exemption  is  to  him  during  his  life,  and  he  has 
the  power  of  absolute  disposal  of  the  propert3^  The  exemp- 
tion of  his  property  from  sale  for  his  debt  is  declared  to  be 
the  meaning  of  the  statute.  "  There  is  no  need  of  any  ex- 
emption of  the  wife's  property,  because  it  is  not  liable  for  his 
debts.  He  is  the  housekeeper,  and  the  exemption  is  to  him, 
that,  as  the  head  of  the  family,  he  may  provide  it  with  a 
house.  If,  where  the  property  is  owned  jointly  by  the  hus- 
band and  wife,  the  homestead,  which  the  law  gives  to  the  hus- 
band, be  taken  partly  from  her  interest,  then  she  would  be 
compelled  to  contribute  to  an  exemption  to  him,  not  allowed 

requirement  as  to  residence  at  the  into  in  about  a  montli.  It  was  held 
time  the  declaration  is  filed  has  been  that  they  were  not  actually  residing 
strictly  construed.  Thus  the  court  on  the  premises  when  the  declaration 
has  many  times  used  and  emphasized  was  filed,  and  hence  that  no  honie- 
the  word  "  actually,"  to  show  that  stead  was  thereby  selected.  Here  it 
the  residence  must  be  real,  and  not  clearly  appears  from  the  evidence 
sham  or  pretended.  In  Babcock  v.  that  the  respondents  went  to  Hay- 
Gibbs,  supra,  the  homestead  claim-  wards,  not  to  make  their  home  or 
ants  went  to  their  lots  in  the  evening,  place  of  abode  there,  but  only  to 
and  spread  a  blanket  for  a  roof,  and  spend  a  night  or  two,  and  then  re- 
slept  under  it.  The  next  day  they  turn  to  their  homes  in  San  Francisco, 
filed  a  declaration  of  homestead,  and  This  was  not  enough  to  constitute  an 
commenced  the  erection  of  a  house,  actual  residence." 
which  they  completed    and  moved  i  Yates  v.  McKibben,  66  la.  357. 


NOTIFICATION.  167 

out  of  his  own  property.  In  such  case,  upon  the  death  of  the 
husband,  would  the  wife  own  any  portion  of  the  homestead 
in  fee,  or  merely  have  a  qualified  or  conditional  interest  in  it? 
The  exemption  is  to  him;  against  his  debt ;  out  of  his  prop- 
erty ;  and  it  follows  that  the  interest  of  the  wife  cannot  be 
made  to  contribute  to  it."  ^ 

§  7.  Notification. 

Notification  to  the  public  that  certain  property  is  held  as  a 
homestead  is  of  great  importance.  Purchasers  at  private 
sale,  from  the  beneficiaries,  are  entitled  to  know  that  the  con- 
veyance must  be  in  accordance  with  the  requirements  for  the 
alienation  of  that  class  of  property.  Purchasers  at  judicial 
sale  are  equally  interested  in  knowing.  Creditors  ought  to 
be  informed  so  that  they  may  not  be  deceived  as  to  the 
property  of  their  debtors  at  the  time  they  trust  them  —  may 
not  mistake  a  shadow  for  substance. 

The  legislator,  with  reference  to  restraints  upon  alienation 
as  well  as  to  exemption  and  the  peculiar  provisions  affecting 
the  estate  of  a  decedent  homestead  beneficiary,  has  made  the 
acquisition  of  homestead  to  depend  upon  notice. 

In  voluntary  dedication  of  homestead,  notice  is  either  of 
two  kinds :  Notice  to  the  public  by  a  recorded  declaration,  or 
notice  by  occupancy.  Where  the  latter  is  deemed  sufficient 
by  the  legislator  to  put  purchasers  and  creditors  upon  inquiry, 
no  formal  description  of  the  home  property,  as  a  homestead, 
in  the  title  deed ;  no  special  record  in  a  book  kept  for  the  pur- 
pose to  which  the  public  may  look;  no  inscription  in  the 
margin  of  the  recorded  title ;  no  actual  notification,  written 
or  verbal,  to  any  one  concerned,  is  required.  The  occupancy, 
being  open  and  notorious,  is  deemed  sufficient. 

Doubtless  it  is  sufficient  to  show  that  the  dwelling  with  its  ap- 
purtenances is  the  occupant's  home,  but  it  does  not  necessarily 
show  that  it  is  his  homestead,  in  the  legal  sense.  It  seems  to 
put  all  who  are  concerned  upon  inquiry ;  and  the  legislator, 
in  states  where  occupancy  alone  is  deemed  notice,  leaves  the 
purchaser  and  creditor  to  ascertain  for  themselves  the  char- 

1  Judge  Holt,  for  the  court,  in  See  Giblin  v.  Jordan,  6  Cal.  416 ;  On- 
Johnson  v.  Kessler,  87  Ky.  458.  Covi-  tai-io  State  Bank  v.  Gerry,  91  Cal.  94; 
pare  Miles  v.  Hall,    12    Bush,    105.     and  Lowell  v.  Shannon,  60  la.  713. 


108  DEDICATION. 

acter  of  the  property  occupied  as  a  home  or  to  neglect  it  at 
their  peril. 

It  is  not  to  be  assumed  that  every  householder  desires  to 
avail  himself  of  the  homestead  provisions.  A  poor  man,  with  a 
family,  living-  on  the  only  real  estate  which  he  owns,  may 
find  the  conditions  to  the  enjoyment  of  the  privilege  of  ex- 
emption too  onerous  in  his  case.  He  may  not  be  willing  to 
diminish  his  credit  by  cutting  himself  off  from  the  right  of 
mortgaging  his  ])roperty,  if  he  lives  where  that  would  be  one 
of  the  results  of  accepting  the  homestead  privilege.  Where 
such  result  does  not  follow  dedication,  he  may  not  wish  to 
place  himself  in  a  condition  which  would  impair  his  general 
credit,  since  he  would  be  less  trusted  if  his  only  property 
should  cease  to  be  liable  for  his  obligations.  He  might  not 
wish  to  destroy  the  prop  which  sustains  his  credit. 

Such  a  householder  might  not  wish  to  subject  his  limited 
estate  to  the  rules  governing  the  homesteads  of  decedents. 
He  might  desire  that,  at  his  death,  an  adult  son  should  enter 
at  once  upon  the  possession  of  his  portion  of  the  home  farm, 
and  not  be  obliged  to  await  the  majority  of  a  minor  child  of 
the  decedent.  It  is  therefore  by  no  means  certain  that  the 
occupant  of  a  home  means  to  dedicate  it  as  a  homestead  by 
his  occupancy. 

Since  penning  the  last  two  paragraphs,  the  writer  has  found 
the  following  (not  specially  noticed  before),  which  is  fully  in 
accord :  "  The  object  of  the  convention  [in  making  the  registry 
of  the  declaration  necessary  to  homestead  exemption]  was 
transparent,  and,  it  seems  to  us,  a  very  wise  one.  It  saw  that 
the  effect  of  the  homestead  provision  coupled,  as  it  was,  with 
the  prohibition  of  the  conventional  waiver  thereof,  would  be 
to  cripple  the  credit  and  resources  of  the  beneficiaries,  which, 
under  many  circumstances,  would  be  more  injurious  than  bene- 
ficial. It  therefore  gave  them  the  option  of  availing  them- 
selves, or  not,  of  the  privilege,  as  their  interests  might  require. 
It  said  to  them :  If  you  desire  to  secure  your  homestead  from 
the  risks  and  chances  of  business,  you  may  do  so  by  register- 
ing your  exemptions  as  required  by  law.  If,  on  the  contrary, 
you  desire  to  retain  your  whole  property  in  a  situation  to 
serve  as  a  basis  of  credit,  for  the  purpose  of  conducting  or 
extending  your  business   operations,  we  leave  you  the  option 


RECORDING.  169 

of  doing  so  by  simply  abstaining  from  registry.  It  never 
meant  to  say :  You  may  abstain  from  registry  until  you  have 
obtained  credit,  and  you  may  then  defeat  your  creditors  by 
subsequent  registry,"  ^ 

In  states  where  there  are  no  onerous  conditions;  where 
mere  occupancy  is  notice ;  where  the  householder  may  mort- 
gage or  sell  unfettered ;  where  he  need  not  claim  exemption 
till  an  execution  is  levied  upon  his  property,  the  above  re- 
marks are  inapplicable.  The  notice  which  is  given  to  the 
public,  by  occupancy,  in  such  case,  is  that  a  certain  sum  or  a 
given  quantity  of  real  estate  is  exempt  from  forced  sale  when 
not  subject  to  lien. 

In  some  states,  the  promulgation  of  the  homestead  law  is 
notice  to  creditors  that  exemption  to  a  stated  amount  may  be 
claimed  from  that  date,  or  a  stated  time,  by  any  debtor  hav- 
ing a  family  and  living  with  him,  at  the  time  of  claiming,  in 
the  home  claimed. 

If  there  is  no  prescribed  method  of  selection,  occupancy  of 
a  home,  with  right  of  possession,  is  sufficient,  when  the  quan- 
tity and  value  of  the  premises  are  within  the  legal  limits.  In 
such  case,  no  formal  notice  to  the  public,  or  to  an  officer  in 
charge  of  an  execution,  is  necessary  —  the  state  of  things 
operating  as  sufficient  notice  that  the  property  is  exempt.^ 

The  continued  residence  of  a  family  upon  their  homestead 
is  notice  that  the  householder  has  some  interest  in  it,  and  "a 
person  purchasing  is  bound  at  his  peril  to  inquire  as  to  the  ex- 
tent of  that  interest,"  it  is  said.* 

§  8.  Recording. 
Compliance  with  the  condition  that  homestead  shall  be  de- 
clared and  recorded  is  essential  to  the  right  of  enjoying  the 
privilege  of  exemption,  when  the  statute  imposes  that  condi- 
tion.'* 

1  Succession  of  Furniss,  34  La.  Ann.  leford  v.  Todhunter,  4  Bradw.  271 ; 
1013-4.  Myers  v.  Ham,  20  S.  C.  532 ;  Ketchin 

2  Beecher  v.  Baldy,  7  Mich.   488 ;     v.  McCavley.  26  S.  C.  1. 

Thomas  v.  Dodge,  8  Mich.  51 ;  Grand  3  McHugh  v.  Smiley,  17  Neb.  626 ; 

Rapids,  etc.  Co.  v.  Weiden,  69  Mich.  Uhl  v.  May,  5  Neb.  157 ;  McKinzie  v. 

572 ;  Riggs  v.  Sterhng,  60  Mich.  643 ;  Perrill,  15  Ohio  St.  168. 

Griffin    v.    Nichols,    51    Mich.    575 ;  *  Goodwin    v.   Colorado  Mortgage 

Coates  V.  Caldwell,  71  Tex.  19;  Shak-  Co.,  110  U.  S.  1 ;  Boreham  v.  Byrne, 


170 


DEDICATION. 


Where  the  declaration  must  be  executed  and  acknowledged 
and  recorded  like  the  grant  of  real  property,  and  must  show 
that  the  declarant  is  the  head  of  a  family,  or  is  the  wife  of 
the  head  of  a  family  who  makes  the  declaration  for  the  joint 
benefit  of  herself  and  her  husband ;  and  that  the  declarant 
occupies  the  premises,  with  his  family ;  and  also  must  describe 
the  property  and  state  its  value,^  the  courts  hold  that  there 
must  be  compliance  with  the  statute  in  manner  and  form.^ 

If  it  is  required  that  "  to  entitle  any  person  to  the  benefit  of 
[the  homestead  act]  he  shall  cause  the  word  '  homestead '  to  be 
entered  of  record  on  the  margm  of  his  recorded  title," '  such 
inscription  is  essential  to  the  benefit.  Justice  Harlan  said  for 
the  court:  "  We  are  not  at  liberty  to  say  that  the  legislature 
intended  actual  notice  to  creditors  of  the  occupancy  of  par- 
ticular premises  as  a  homestead  to  be  equivalent  to  the  entry, 
on  the  record  of  title,  of  the  word  '  homestead.'  The  require- 
ment that  the  record  of  the  title  shall  show  that  the  premises 
are  occupied  as  a  homestead  before  any  person  can  become 


83  Cal.  23 ;  Lubbock  v.  McMann,  82 
Cal.  226;  In  re  Allen,  78  Cal.  294; 
Beck  V.  Soward,  76  Cal.  527 ;  Malony 
V.  Hefer,  75  Cal.  424;  Laughlin  v. 
Wright,  63  Cal.  113 ;  Hutchinson  v. 
Ainsworth,  63  Cal.  286 ;  Uam  v.  Santa 
Rosa  Bank,  62  Cal.  138 ;  S.  C,  45  Am- 
Rep.  654 ;  Wedel  v.  Herman,  59  Cal. 
513;  Clements  v.  Stanton,  47  Cal.  60; 
Prescott  V.  Prescott,  45  Cal.  58 ;  Gam- 
bette  V.  Brock,  41  Cal,  78 ;  Maun  v. 
Rogers,  35  Cal.  316;  Gregg  v.  Bos- 
tick,  33  Cal.  220 ;  McQuade  v.  Whaley, 
31  Cal.  533 ;  Noble  v.  Hook,  24  Cal. 
639 ;  Riley  v.  Pehl,  23  CaL  70 ;  Bar- 
tholomew V.  Hook,  23  Cal.  278 ;  Estate 
of  Reed,  33  Cal.  410 ;  Cohn  v.  Davis, 
20  Cal.  194 ;  Commercial  Bank  v.  Cor- 
bett,  5  Saw.  547 ;  Lackman  v.  Walker, 
15  Nev.  422 ;  Child  v.  Singleton,  15  Nev. 
461 ;  Smith  v,  Shrieves,  13  Nev.  303 ; 
Smith  V.  Stewart,  13  Nev.  70 ;  Estate  of 
Walley,  11  Nev.  264 ;  Hawthorne  v, 
Smith.  3  Nev.  164 ;  Mills  v.  Spauld- 
iug,  50  Me.  57 ;  Lawton  v.  Bruce,  39 


Me.  484 ;  Davenport  v.  Alstin,  14  Ga. 
271;  Murphy  v.  Hunt,  75  Ala.  438, 
441 ;  Boyle  v.  Shulman,  59  Ala.  566 ; 
Linsey  v.  McGannon,  9  W.  Va.  154; 
Taylor  v.  Saloy,  38  La.  Ann.  62 ;  Ger- 
son  V.  Gayle,  34  La.  Ann.  337 ;  Gil- 
mer V.  O'Neal,  32  La  Ann.  983; 
Bramin  v.  Womble,  32  La.  Ann.  805 ; 
Doughty  V.  Sheriff,  27  La.  Ann. 
355 ;  Robert  v.  Coco,  25  La.  Ann.  199 ; 
Tennent  v.  Pruitt,  94  Mo.  145 ;  Shind- 
ler  V.  Givens,  63  Mo.  395 ;  Farra  v. 
Quigley,  57  Mo.  284;  Griswold  v. 
Johnson,  22  Mo.  App.  466;  Barnett 
V.  Knight,  7  Colo.  365.  See  Pritch- 
ard  V.  Ward,  64  Ga.  446;  Hunting- 
ton V.  Chisholm,  61  Ga.  270 ;  Wray 
V.  Davenport,  79  Va.  19. 

1  Deering's  Annotated  Stat,  of  Cal., 
§§  1237-1263;  Rev.  Stat.  Idaho, 
§§  3035-3088. 

2The(     iifornia  cases  above  cited. 

3  Gen.  Laws  Colo.,  1877,  ch.  76,  §3; 
Gen.  Stats.,  §§  1631-2. 


EECORDING.  171 

entitled  to  the  benefits  of  the  statute  is  absolute  and  uncon- 
ditional." And  an  answer  failing  to  show  compliance  with 
this  requirement  was  held  fatally  defective,  and  the  homestead 
right  was  denied,  in  a  suit  by  a  purchaser  for  possession.^ 

Where  the  exemptionist  is  required  not  only  to  occupy  the 
land  but  to  record  his  title  before  immunity  from  debt  can  be 
enjoyed  relative  to  the  land  as  his  homestead,  he  will  not  be 
protected  by  simply  living  upon  the  land,  with  his  family.'^ 
But  exception  was  made  in  favor  of  one  who  had  exchanged  : 
one  homestead  for  another  yet  had  not  recorded  his  title  to 
the  latter.  Homestead  right,  being  already  acquired,  was  not 
lost  by  the  failure  to  record  the  new  property  to  which  the 
exemption  had  immedi  ately  attached  on  exchange.' 

The  fact,  that  one  property  had  been  exchanged  for  an- 
other, and  the  homestead  character  transferred  from  one  to 
the  other,  appearing  in  the  deed,  would  have  been  notice  to 
the  public,  had  the  deed  been  recorded.^  So  long  as  it  re- 
mained unrecorded,  it  would  seem  that  the  public,  notified 
only  by  the  record,  would  understand  the  first  property  to  be 
exempt,  and  the  second  (for  which  the  first  was  exchanged) 
liable  for  debt. 

The  husband  can  mortgage  the  property  actually  occupied 
as  a  residence  by  himself  and  his  family,  without  his  wife's 
consent,  where  the  necessary  act  of  recording,  to  complete 
the  right  of  exemption,  has  been  neglected.^  He  can  do  so, 
because  the  property  is  not  homestead.  He  may  not  only 
act  alone  in  creating  a  lien,  but  he  may  also  alienate  it  in  any 
way  that  would  be  legal  in  disposing  of  any  of  his  other 
realty,  for  the  reason  that  a  condition  necessary  to  the  com- 
pletion of  the  homestead  character  is  wanting.  It  is  equally 
clear  that  if  the  home  has  not  been  rendered  exempt  by  com- 
pliance with  this  condition,  it  is  open  to  creditors. 

When  registry  of  homesteads  is  made  essential  to  their  es- 
tablishment, it  must  precede  the  recording  of  a  mortgage  to 

1  Goodwin  v.  Colo.  Mortgage  Co.,  » Smith  v.  Enos,  91  Mo.  579 ;  Creath 
110  U.  S.   1 ;   Barnett  v.    Knight,   7     v.  Dale,  84  Mo.  349. 

Colo.  365.  4  Cheney  v.  Rodgers,   54  Ga.   168; 

2  Tennent  v.   Pruitt,  94   Mo.    145 ;  Murray  v.  Sells,  53  Ga.  257. 
Shiudler  v.  Givens,  63  Mo.  395 ;  Farra  ^  Child  v.  Singleton,  15  Nev.  461 ; 
V.  Quigley,  57  Mo.  284 ;  Griswold  v.  Smith  v.  Shrieves,  13  Nev.  303 ;  Com- 
Johnson,  22  Mo.  App.  466.  mercial  Bank  v.  Corbett,  5  Saw.  547. 


172  DEDICATION. 

save  the  lien  from  bearing  on  the  home  set  apart.  Exemp- 
tion, in  such  case,  is  inoperative  against  debts  contracted 
prior  to  registry,  where  pre-existing  debts  of  ordinary  char- 
acter are  collectible  by  judgment  and  execution  against  the 
homestead.*  It  is  too  plain  for  argument,  that  an  existing 
mortgage  cannot  be  defeated  by  a  subsequent  declaration  of 
homestead.     The  declaration  cannot  operate  ex  post  facto} 

Recording,  or  lodging  for  the  purpose  of  recording,  is  nec- 
essary to  convey  the  interest  of  either  marital  party  in  the 
homestead,  when  the  statute  makes  the  wife's  deed  and  ac- 
knowledgment depend  upon  record.^ 

The  importance  attached  to  recording  does  not  everywhere 
have  recognition.  Where  the  statute  requires  that  home- 
stead be  recorded,  but  adds  that  the  neglect  to  record  shall 
not  affect  the  householder's  exemption  right,  or  words  to 
that  effect,  it  is  held  that  he  is  guilty  of  no  laches^  and  loses 
no  rights,  if  he  lets  recording  alone  till  the  sheriff  plats  and 
sets  apart  and  records  his  lot  after  a  levy  upon  it,* 

Selection  is  necessary  when  property,  greater  in  quantity 
or  value  than  the  law  exempts,  is  levied  upon,  and  the  home- 
stead is  to  be  reserved  from  it.  It  is  not  important  that  the 
selection  be  made  before  the  levy;  it  may  be  done  at  any 
time  before  sale,  in  such  way  as  to  notify  the  officer  m  charge 
of  the  writ.  The  notification  to  him  should  be  such  as  will 
enable  him  to  omit  the  reservation  from  the  sale ;  that  is,  the 

1  Kinder  v.  Lyons,  38  La.  Ann.  713 ;  "  Such  exemptions,  to  be  valid,  shall 

Succession  of  Furniss,  34  La.  Ann.  be  set  apart  and  registered,  as  shall 

1013.     Claims  of  homestead  exemp-  be  provided  by  law."     La.  Const,  of 

tions  affecting  debts  and  contracts  1879 ;  Broome  v.  Davis,  87  Ga  584. 

existing   before  the  constitution   of  *  Hensey  v.  Hensey  (Ky.),  17  S.  W. 

1879    are    governed    by   the   law   in  333 ;  Ky.   Gen.    Stat.,    ch.  38,  art  13, 

force  at  time  of  contract.     Thomas  §  13;  ch.  24,  §  21.     Under  the  New 

V.  Guilbeau,  35  La.  Ann.  927;  Poole  Hampshire  statute  of,  1851,  the  wife's 

V.  Cook,  34  La.  Ann.  331 ;  Gilmer  v.  signature  to  a  mortgage  previously 

O'Neal,  32  La.  Ann.  980;  Gerson  v.  executed    by  her    husband  and  re- 

Gayle,  34  La.  Ann.  337.  corded,   had   no  effect  when   made 


2  Taylor  v.  Saloy,  38  La,  Ann.  62 
Gilmer  v,  O'Neal,  32  La.  Ann.  983 
Bramin  v.  Womble,  32  La.  Ann.  805 
See  Gerson  v.  Gayle,  34  La.  Ann.  337 
Robert  v.  Coco.  25  La,  Ann.  199 
Doughty  V.  Sheriff,  27  La.  Ann.  355. 


without  seal  or  witnesses.     Wilson  v. 
Mills  (N.  H.).  22  A.  455. 

*  Sargent  v.  Chubbuck,  19  la.  37; 
Nye  V.  Walliker,  46  la.  306 ;  Green 
V.  Farrar,  53  la.  426. 


EECORDING.  173 

boundaries  should  be  made  known  with  certainty.  This  is  re- 
quired, though  there  be  no  formal  method  prescribed,^ 

On  June  13,  1881,  a  judgment  was  rendered  against  a  de- 
fendant, named  Treadway,  for  over  $10,000 ;  on  the  9th  of 
July  execution  was  issued  and  land  levied  upon ;  on  the  5th  of 
August  the  land  was  sold  to  the  plaintiff  at  judicial  sale,  and 
six  months  thereafter  he  received  his  title  from  the  sheriff, 
which  was  then  duly  recorded. 

On  the  1st  of  August,  1881,  after  the  levy,  Treadway  mar- 
ried, and  he  and  his  wife  afterwards  lived  on  the  land  as  their 
homestead,  until  the  trial  of  the  suit  brought  for  their  eject- 
ment by  the  purchaser  at  judicial  sale.  Treadway  claimed  to 
have  lived  there  long  before,  and  to  have  supported  the  defend- 
ants as  members  of  his  family  —  a  fact  contested. 

The  ejectment  suit  turned  upon  the  question  of  the  validity 
of  the  judicial  sale.  Treadway  occupied  before  the  levy;  he 
may  have  had  a  legal  family  before,  though  not  married  till 
afterwards,  but  he  had  filed  no  declaration  before.  Yet  the 
court  said :  "  From  the  instant  the  declaration  of  the  home- 
stead was  filed  for  record,  the  property  in  contest  became 
and  was  '  a  homestead  as  provided  by  law,'  and  from  that  in- 
stant it  came  within  the  protection  of  the  constitution  and 
statute,  and  could  not  be  levied  upon,  or  sold  for  or  upon  any 
debt  or  liability  not  excepted  and  mentioned  in  the  constitu- 
tion." 

The  constitution  expressly  excepts  only  taxes,  obligations 
contracted  for  the  purchase  of  the  homestead  and  for  its  im- 
provements, and  liens  given  by  husband  and  wife.-  It  is  silent 
as  to  property  debts,  or  liens  attached  before  the  declaration 
of  homestead,  and  therefore  the  court  thought  them  cut  off 
by  the  declaration. 

The  conclusion  of  the  court  may  be  thus  stated:  That 
when  recording  the  homestead  declaration  is  the  method  pre- 
scribed by  law  for  fixing  the  exemption  right,  it  may  be  done 
after  judgment  and  levy,  before  sale,  when  the  time  of  so 
doing  is  not  otherwise  specified ;  that  a  sale  of  the  property, 
after  such  recordation,  would  be  void,  unless  for  a  debt  which 

1  First  Nat  Bank  v.  Jacobs,  50  Mich.  Herschfeldt  v.  George,  6  Mich.  468 ; 
340 ;  Beecher  v.  Baldy,  7  Mich.  488 ;     Stevenson  v.  Jackson,  40  Mich.  702. 

2  Const.  Nev.,  §  104. 


174  DEDICATION. 

is  excepted  from  exemption ;  that  the  right  is  attached  when 
the  property  is  dedicated  as  a  homestead,  so  as  to  prevent  the 
execution  of  a  judgment,  and  levy  already  made.' 

But  how  can  the  recording  of  such  declaration  affect  the 
lien  of  a  judgment  already  rendered  and  of  a  levy  thereunder? 
That  is,  if  the  lien  has  attached  before  the  declaration,  how 
can  the  recording  of  the  declaration  dislodge  it?  The  court 
did  not  hold  that  no  lien  attached  but  that  such  liens  were  not 
excepted  from  the  exemption  by  the  constitution.  If  the  dec- 
laration had  been  made  and  recorded  before  the  levy  of  the 
execution,  no  lien  would  have  been  created  by  the  levy ;  but, 
made  afterwards,  it  could  not  affect  the  lien,  if  one  had  at- 
tached, if  the  general  law  governing  liens  had  not  been  abro- 
gated. The  law  is  as  decided,  in  the  state  where  the  decision 
was  made,  by  virtue  of  it ;  but  it  cannot  command  general  in- 
fluence. 

Considered  as  notice,  recordation  after  credit  has  been  ob- 
tained on  the  faith  of  the  property  not  dedicated  (and,  in  this 
case,  held  by  an  unmarried  man  believed  to  have  no  legal 
household),  was  poor  notice  to  the  creditor. 

Of  a  constitution  which  required  the  recording  of  homestead 
declaration  (as  the  one  above  cited),  it  was  said  by  the  supreme 
court  expounding  it:  "The  constitution,  after  defining  the 
exemptions,  says :  '  Such  exemptions,  to  be  valid,  shall  be  set 
apart  and  registered,  as  shall  be  provided  by  law.'  Then,  until 
set  apart  and  registered,  there  is  no  valid  exemption,  which 
means,  practically,  no  exemption  at  all.  If  there  existed  no 
valid  exemption  when  the  debt  was  contracted,  certainly  the 
constitution  did  not  intend  to  leave  it  in  the  power  of  the 
debtor  to  create  such  an  exemption  thereafter,  to  the  prejudice 
of  antecedent  creditors.  What  is  the  object  of  registry? 
Notice  to  whom?  To  third  parties  dealing  with  the  debtor. 
What  would  be  the  use  of  such  notice  given  after  the  debts 
have  been  contracted?"^ 

1  Nevada   Bank    v.    Treadway,   17  1'^'*;  Stone  v.   Darnell,   20  Tex.  14; 

Fed.    887.      Citing:    Hawthorne    v.  Macmanus  v.  Campbell,  37  Tex.  267. 

Smith,    3    Nev.    182 ;     Lachman    v.  '^  Succession  of  Furniss,  34  La.  Ann. 

Walker,  15  Nev.  425 ;  Estate  of  Walley,  1013-14. 
11  Nev.  264 ;  North  v.  Shearn,  15  Tex. 


CHAPTER  YI. 


OCCUPANCY. 


1.  The  Condition  Stated. 

2.  Declaration  and  Occupancy  as 

Conditions. 

3.  Declaration    Directory  —  Occu- 

pancy Essential. 

4.  Occupant     Claiming     Without 

Declaration. 

5.  Principal  Use. 


Subordinate  Uses. 

Intention  to  Occupy. 

Intent  Subsequently  Realized. 

Retroaction. 

Retroaction :  Building  Material. 

Inherited  Homesteads. 


13.  Legal  Possession  as  Occupancy. 


§  1.  The  Condition  Stated. 

Occupancy  is  one  of  the  conditions  upon  which  the  privilege 
of  exemption  is  tendered  by  the  legislator.  This  condition  is 
found  in  all  the  statutes,  generally  speaking,  and  in  nearly  the 
same  phraseology  in  all;  certainly  the  requirement  is  sub- 
stantially the  same  wherever  this  condition  is  imposed ;  and, 
as  already  said,  there  is  a  near  approach  to  universality  in 
making  this  requirement.  No  other  feature  of  the  homestead 
system  approximates  so  closely  in  all. 

Actual  occupancy  —  literal  living  in  the  exempt  home  — 
family  residence  there  —  present  use  by  a  household  of  a 
dwelling  place  as  an  abiding  habitation  —  is  the  condition. 
The  head  of  the  family,  on  compliance  with  this  and  the  other 
conditions,  is  privileged  to  avail  himself  of  the  beneficent  offer 
of  the  legislator. 

In  the  acquisition  of  the  exemption  right,  compliance  with 
this  condition  is  indispensable.  In  the  retention  of  the  riglit, 
literal,  continuous,  actual  occupancy  is  not  so  strictly  required, 
as  will  be  shown  hereafter.  The  subject  now  in  hand  is  oc- 
cupancy as  a  condition  to  the  acquisition  of  a  homestead. 

Legal  possession  may  exist  without  actual  occupancy,  but 
this  alone  is  not  a  condition  in  the  acquisition  of  the  home- 
stead privilege.  True,  occupancy  must  be  attended  by  it; 
the  mere  use  of  a  house  and  its  appurtenances  as  a  residence, 
without  the  right  thus  to  use  it,  would  be  of  no  avail.     Pos- 


iTO 


OCCUl'ANCV. 


session  is  often  constructive;  the  owner  is  deemed  in  posses- 
sion when  he  hokls  the  title  and  controls  the  property,  though 
he  may  never  have  set  his  foot  upon  it;  but  the  exemptionist 
must  be  an  occupant,  as  the  authorities  cited  in  the  following 
sections  fully  show. 

Contemplated  occupancy  has  been  countenanced  in  some 
decisions,  though  it  is  believed  to  have  no  warrant  by  any 
statute;  such  decisions  will  be  considered  in  their  place;  the 
purpose  now  is  to  show  that  the  current  of  authority  follows 
the  statutes,  establishing  the  proposition  that  actual  occupancy 
by  the  owner  and  his  family  is  an  essential  condition  to  the 
acquisition  of  the  exemption  privilege. 

§  2.  Declaration  and  Occnpancy  as  Conditions. 

In  the  states  Avhere  both  declaration  and  occupancy  are  es- 
sential to  the  acquisition  of  the  homestead  immunity,  the 
householder  cannot  put  off  claiming  exemption  till  his  prop- 
erty has  been  levied  upon  for  debt,  nor  even  till  judgment  has 
been  rendered  against  him,  and  then  defeat  the  remedy  of  his 
creditors  by  showing  that  he  actually  occupied  his  home  be- 
fore the  debts  were  contracted.  In  those  states,  the  home- 
stead character  begins  only  at  the  time  of  the  declaration  of 
occupanc}^  ownership  and  family  headship. 

The  declaration  is  insufficient  if  it  do  not  state  that  the  de- 
clarant and  his  family  reside  on  the  premises  at  the  time  it  is 
made.  Without  such  statement,  the  declaration  is  not  even 
admissible  in  evidence  to  prove  the  existence  of  a  homestead, 
under  a  statute  requiring  the  averment  of  occupancy  to  be 
made  in  the  instrument  and  duly  recorded.  It  is  not  sufficient 
to  declare  that  the  ])roperty,  fully  described,  is  owned  and 
possessed  by  the  declarant,  that  it  is  within  the  statutory  lim- 
itation of  value  and  that  the  declarant  is  a  married  man ;  for 
there  is  still  the  radical  defect  —  the  omission  of  the  aver- 
ment of  actual  occupancy.  There  may  be  possession,  in  a 
legal  sense,  through  a  tenant,  or  even  personal  possession, 
without  actual  occupancy  of  the  described  property  as  the 
home  of  the  owner  and  his  family,  at  the  time  the  declaration 
is  made  and  recorded  as  notice  to  the  world.  Enforcing  this 
requirement,  it  was  judicially  said  that  the  statute  requiring  the 
averment  of  occupancy  was  an  enabling  act  and  intended  as 


DECLARATION    AND    OCCUPANCY    AS    CONDITIONS.  177 

such;  that  it  had  to  be  obe^'cd  in  order  to  make  a  selection 
and  dedication ;  that  the  ability  to  protect  tlie  property  as 
homestead  from  forced  or  voluntary  sale  depended  upon  com- 
pliance with  this  requirement,  "  Nothing  could  make  the 
premises  a  valid,  protected  homestead  without  such  a  declara- 
tion as  the  statute  required.  Actual  residence  on  the  land 
would  not  so  make  it,  in  the  absence  of  a  suthcient  declara- 
tion. A  declaration  sufficient  in  form  without  residence,  and 
residence  without  a  sufficient  declaration,  are  alike  ineffectual 
to  constitute  the  homestead,"  And  it  was  also  said :  "  In  all 
cases,  residence  on  the  laud  was  requisite  [by  the  act  under 
construction]  to  consummate  the  claim  of  homestead."' 

'No  particular  length  of  time  is  prescribed  as  essential  to 
the  occupancy  necessary  to  entitle  one  to  declare  homestead. 
One  day  may  suffice;-  but  all  of  the  conditions  —  actual  oc- 
cupancy, ownership,  family  headship  and  dedication,  must 
co-exist,  in  those  states  where  they  are  required ;  for  the  ob- 
servance of  all  the  conditions  but  one  will  not  excuse  the 
neglect  of  that.' 

The  statutory  provisions  that  the  house  and  land,  constitut- 
ing the  residence  of  the  claimant,  may  be  selected  as  the 
homestead,  and  that  it  may  be  selected  from  any  real  prop- 
erty occupied  and  owned  ....  (with  no  contrary  or  quali- 
fying provisions  express  or  implied),  is  construed  to  require 
actual  occupancy  in  the  acquisition  of  the  exemption  provided 
in  the  statute.* 

1  Boreham  v.  Byrne,  83  Cal.  23,  26-8.  Cal.  220 :  S.  C,  91  Am.  Dec.  637 ;  Mann 
Citing  Gregg  v.  Bostwick,  33  Cal.  v.  Eogers,  35  Cal.  316;  Gambette  v. 
220 ;  S.  C,  91  Am.  Dec.  637 ;  Maun  v.  Brock,  41  Cal.  83 ;  Prescott  v.  Pres- 
Rogers,  35  Cal.  316;  Gambette  v.  cott,  45  Cal.  58;  Babcock  v.  Gibbs, 
Brook,  41  Cal.  83.  52  Cal.  629;  Dorn  v.  Howe,  53  Cal. 

2  Skinner  v.  Hall,  69  Cal.  195.  In  630;  Aucker  v.  McCoy,  56  Cal.  534; 
this  case  the  declarant's  family  did  Laughlin  v.  Wright,  63  Cal.  113;  Ma- 
not  reside  with  him,  and  the  property  louey  v.  Hefer,  75  Cal.  424;  In  re 
declared  upon  was  not  all  occupied  Allen,  78  Cal.  294 ;  Lubbock  v.  Mc- 
by  him  as  a  residence  but  was  in  use  Mann,  82  Cal.  226 ;  Ackley  v.  Cham- 
for  other  purposes  :  yet  the  declara-  berlain,  16  Cal.  182 ;  S.  C,  76  Am.  Dec, 
tion  was  held  good.  516;  Estate  of  Crowey,  71  Cal.  300; 

3  Galligher  v.  Smiley,  28  Neb.  194.     King  v.  Gotz,  70  Cal.  236 ;  Pfister  v. 
■*  Deering's  Annot.  Code  &  Stat*  of     Dascey,  68  Cal.  572 ;  Benedict  v.  Bun- 

Cal.,  g§  1237-1263 ;  Boreham  v.  Byrne,     nell,  7  Cal.  245  ;  Holden  v.  Piuney,  6 
83  Cal.   23 ;    Gregg   v.    Bostwick,  33    Cal.  234,  625 ;  Skinner  v.  Hall,  69  Cal. 
12 


178  OCCCJPANCY. 

It  is  said  that  the  conditions  on  which  homestead  protection 
is  vouchsafed,  such  as  family  occupancy,  ownership,  and  mone- 
tary value,  must  co-exist  at  the  time  the  declaration  is  made.^ 
And  when  they  cease,  the  benefit  has  been  held  to  cease  with 
them.-  Monetary  value,  however,  is  not  a  condition  but  a  re- 
striction, so  that  a  given  sum  shall  not  be  exceeded.  The  point 
of  the  deliverance  is  that  the  real  conditions  must  be  complied 
with  by  the  defendant  when  he  made  the  declaration. 

§  3.  Declaration  Directory  —  Occupancy  Essential. 

The  citations  above  made  may  be  sufficient  to  show  the 
rule  in  those  states  which  make  exemption  depend  upon  the 
recorded  declaration  of  occupancy  at  the  beginning,  and  date 
its  effect  upon  creditors  from  the  time  they  had  such  notice. 

There  is  an  exceptional  course,  where  the  statute,  though 
providing  for  the  declaration,  makes  it  merely  directory,  and 
expressly  provides  that  if  it  be  not  made,  occupancy  shall  be 
sufficient  to  enable  the  householding  head  of  a  family  to  claim 
exemption  at  any  time  —  even  after  a  writ  of  execution  has 
been  issued  against  his  home.  It  is  provided  that  the  selec- 
tion of  the  homestead  may  be  by  the  owner,  husband  or  wife, 
by  marking  the  bounds  and  giving  description  such  as  is  usual 
in  instruments  conveying  land,  which  description,  with  the  plat, 
shall  be  recorded  in  the  Homestead  Book.  But  it  is  added 
that  if  the  owner  fail  to  mark,  plat  and  record  as  directed,  he 
does  not  thus  forfeit  the  right  of  exemption;  but  the  officer 
executing  a  writ  against  the  property  may  cause  the  home- 
stead to  be  marked  off,  platted  and  recorded.^ 

It  will  be  seen  that  acquisition  does  not  depend  upon  dec- 
laration, since  there  could  have  been  no  possibility  of  forfeit- 
ure, had  declaration  been  made  an  essential  condition  —  there 
would  have  been  nothing  to  be  forfeited,  in  the  absence  of 
that  which  was  essential  to  the  original  creation.  It  will  be 
further  seen  that  inscription  in  the  Homestead  Book  was  not 

195 ;  In  re  Noah,  73  Cal.  590 ;  Gary  v.  '^  Cliaflfe  v.  McGehee,  38  La,  Ann. 

Tice,  6  Cal.  625.  278 ;  Nugent  v.  Carruth,  32  La.  Ann. 

1  Denis  v.  Gale,  40  La.  Ann.  286 ;  444  {overruling  Hardin  v.  Wolf,  29 

Bossier  v.  Sheriff,  37  La.  Ann.  263 ;  La.  Ann.  333).    Compare  Van  Wickle 

Gallagher  v.  Payne,  34  La.  Ann.  1057 ;  v.  Landry,  29  La.  Ann.  330. 

Tilton  V.  Vignes,  33  La.  Ann,  240;  »  McClain's  Iowa  Code,  §§  3163-9. 
Const  La.,  art.  222. 


occur  ANT    CLAIMING    WITHOUT    DECLARATION.  179 

meant  to  be  the  only  notice  to  creditors,  as  it  is  in  other  states 
having  the  same  requirement. 

Actual  occupancy  is  made  to  take  the  place  of  both  as  well 
as  to  perform  its  own  office,  in  the  acquisition  of  homestead. 
Notorious  home-keeping  on  the  premises  is  notice,  as  in  states 
where  it  is  the  only  notice  to  creditors.  It  also  answers  for 
declaration  —  or,  rather,  is  sufficient  without  it,  as  a  means  of 
acquiring, —  thus  also  following  the  rule  in  the  majority  of  the 
states. 

The  requirement,  "  the  homestead  must  embrace  the  house 
used  as  a  home  by  the  owner  thereof,"  '  means  that  there  must 
be  actual  occupancy ;  -  that  the  "  use  "  shall  be  by  the  family 
of  the  owner,  and  is  essential  to  his  enjoyment  of  the  exemp- 
tion immunity  ;^  that  the  homestead  character  does  not  at- 
tach to  property  before  its  actual  occupancy  as  the  family 
habitation  —  the  prior  intention  to  occupy  it  giving  no  exemp- 
tion right  or  claim  though  subsequently  followed  by  occu- 
pancy;* that  though  the  home  consists  only  of  a  room,  a  flat 
or  any  part  of  a  house,  such  part  becomes  exempt  because  of 
its  family  occupanc}'',  while  the  rest  of  the  building  would  be 
liable  to  creditors  because  of  its  non-occupancy  as  a  home." 

§  4.  Occupant  Claiming  Without  Declaration. 

The  enactment:  "That  every  householder  having  a  family 
shall  be  entitled  to  an  estate  of  homestead,  to  the  extent  in 
value  of  one  thousand  dollars,  in  the  farm  or  lot  of  land  and 
buildings  thereon,  owned  or  rightly  possessed,  by  lease  or  other- 
wise, and  occupied  hy  him  or  her  as  a  residence,^'' "  is  held  to 
mean  that  the  homestead  must  be  in  fact  the  home;  that  the 
land  must  embrace  a  dwelling-house  actually  used  as  a  resi- 
dence by  the  owner  and  his  family; "  that  the  homestead  must 
be  determined  by  occupancy  and  not  by  intention;-  that  the 

1  McClain's  Code,  la.,  §  3169.  First  N.  Bank  v.  Hollingsworth,  78 

2  Yost  V.  Devault,  9  la.  60;  Hyatt    la.  575. 

V.  Spearmao,  20  la.  510.  5  Rhodes  v.  McCormick,  4  la.  368 ; 

3  Cole  V.  Gill,  14  la.  527 ;  Page  v.  McCormick  v.  Bishop,  28  la.  233 ; 
Ewbank.  18  la  580.  Mayfield  v.  Maasden,  59  la.  517 ;  John- 

■«  Belknap  v.  Martin,  4  Bush,  47 ;  son  v.  Moser,  66  la.  536 ;  Arnold  v. 

Givans  v.  Dewey,  47  la.  414 ;  Elston  v.  Gotshali,  71  la.  572. 

Robinson,  23  la.  208;  Christy  v.  Dyer,  «  Starr  &  Curtis"  Ann.  Stat  of  111.. 

14  la.  438;  Williams  v.  Swetland,  10  p.  1197. 

la.  51 ;  Campbell  v.  Ayres,  18  la  252 ;  "  Kitchell  v.  Burgwin,  21  III  40. 

Charless  v.   Lamberson,    1    la    435;  ^Xourville  v.  Pierson,   39  111.   446; 


180 


OCCUPANCV. 


occupancy  comes  too  late,  after  judgment ;  that  the  exemp- 
tion right  does  not  attach  till  the  claimant  is  the  head  of  a 
family,  the  holder  of  the  title,  and  the  occupant  of  the  prem- 
ises with  his  family; '  and  that  a  tract  of  land  must  be  actually 
occupied  as  a  homestead  to  become  exemj^t.- 

The  following  terms  of  exemption  are  found  in  many  stat- 
utes, in  almost  the  same  words  in  all  which  are  here  quoted 
from  one :  "  A  homestead,  to  be  selected  by  the  owner  thereof, 
consisting  ...  of  land  .  .  .  ,  and  the  dAvelling-house 
thereon  and  its  appurtenances,  owned  and  occupied  by  any 
resident  of  this  state,  shall  be  exempt  from  seizure  and  sale 
on  execution.     .     .     .     " ' 

It  is  held,  in  construing  this  provision,  that  the  word  "  oc- 
cupied "  should  have  controlling  effect ;  *  that  it  is  the  actual 
home,  and  no  other,  which  is  exempt ;  ^  that  the  word  "  home- 
stead" means  a  place  of  residence,  impl3ang  occupancy  or 
literal  possession ;  ^  that  the  chief  characteristic  of  the  home- 
stead is  that  it  is  the  land  on  which  the  dwelling  of  the  owner 
and  his  family  is  situated.' 

"  The  homestead  of  every  housekeeper  or  head  of  a  family, 
consisting  of  a  dwelling-house  and  appurtenances,  and  the  land 
used  in  connection  therewith,  not  exceeding  the  amount  and 
value  herein  limited,  which  is  or  shall  be  used  by  such  house- 
keeper or  head  of  a  family  as  such  homestead,  shall,  together 
with  the  rents,  issues  and  products  thereof,  be  exempt  from 
attachment  and  execution,  except  as  herein  provided."  ® 

Reinbach  v.  Walter,  27  111.  393 ;  Free-  ^  Weisbrod  v.  Daenicke,  36  Wis.  73. 

man  v.  Stewart,  5  Biss.  19.  ^  Jarvais  v.  Moe,  38  Wis.  440. 

1  Shackleford  v.  Todhunter,  4  111.  ^  Upham  v.  Second  Ward  Bank,  15 

App.  271.  Wis.  449;   Phelps  v.  Rooney,  9  Wis. 

^ Gardner  v.  Ebenhart,  83  111.  316 ;  70 ;  Hajriman  v.  Queen's  Ins.  Co.,  49 

Hotchkiss  V.  Brooks.  93  111.  386.   And,  Wis.  71. 

generally,  that  there  must  be  actual  ^  Bunker  v.  Locke,  15  Wis.  635. 
occupancy,  as  distinguished  from  See,  to  like  effect  with  foregoing  de- 
construct! ve,  and  from  mere  legal  cisions :  Bridge  v.  Ward,  35  Wis.  687 ; 
possession.  Fisher  v.  Cornell,  70  111.  Casselman  v.  Packard,  16  Wis.  114; 
216 :  Titman  v.  Moore,  43  111.  169 ;  Binzel  v.  Grogan,  67  Wis.  147 ;  Free- 
Cabeen  v.  Mulligan,  37  111.  230;  Wal-  man  v.  Stewart,  5  Biss.  19;  Carter  v. 
ters  V.  People,  21  111.  178 ;  Cahill  v.  Sommerraeyer,  27  Wis.  665.  But  see, 
Wilson,  62  111.  157 ;  Walters  v.  The  as  not  fully  in  accord,  Scofield  v. 
People,  21  111.  178.  Hopkins,  61  Wis.  370. 

3  Wis.  Stat.  (Sanborn  &  Berryman),  s  Rev.  Stat  Mo.  (1889),  sec.  5435. 
§  2083. 


OCCUPANT    CLAIMING    WITHOUT    DECLARATION.  181 

"Where  no  formal  dedication  is  required,  there  yet  must  be 
actual  occupancy  prior  to  sale  under  execution  to  enable  the 
debtor  to  avail  himself  of  the  exemption  privilege  relative  to 
his  home.'  There  must  be  actual  residence  or  use  for  home- 
stead purposes.^ 

Failure  to  occupj'-  a  donated  homestead  on  public  domain  is 
a  forfeiture  of  whatever  rights  the  applicant  may  have  ac- 
quired.^ 

Both  husband  and  wife  must  settle  upon  a  pre-emption 
homestead.  One  hundred  and  sixty  acres  are  given  to  a 
family  of  husband  and  wife  as  community  property,  and  the 
land  must  be  occupied  by  them.'*  Actual  occupancy  is  neces- 
sary both  in  the  acquisition  and  retention  of  a  homestead.^ 

A  constitutional  provision  is  as  follows :  "  A  homestead 
.  .  .  occupied  as  a  residence  by  the  family  of  the  owner 
,.  .  .  shall  be  exempted  from  forced  sale  by  any  process  of 
law  .  .  ."  ^  It  is  construed  to  mean,  by  homestead,  the 
dwelling-house  where  the  owner's  family  resides:  the  tests 
being  use  and  quantity  —  the  latter  being  specified  in  the  same 
article.'^ 

Occupancy  is  necessary  to  the  creation  of  the  character  of 
immunity.*  And  it  must  be  family  occupancy ;  not  that  of 
the  owner   alone.     A  married   man's   conveyance  was   held 

iLetchford  v.  Gary,  52  Miss.  791;  Liebstrau  v.  Goodsell,  36  Minn.  417,- 

Irwiu  V.  Lewis,  50  Miss.  363 ;  Lessley  Kresin  v.  Mau,   15  Minn.   1 16 ;  Don- 

V.   Phipps,   49  Miss.   790;    Totter  v,  aldson   v.   Lamprey,    29    Minn.    18; 

Dobbs,  38  Miss.  198.  Kelly  v.  Baker,  10  Minn.  124 ;  Tillot- 

2McDanuell  v.  Ragsdale,   71  Tex-  son  v.  Millard,  7  Minn.  513. 

23 ;  Coates  v.  Caldwell,  71  Tex.  19 ;  6  Const.  Kxinsas,  art.  15,  §  9  ;  Gen. 

Langston    v.   Maxey,    74    Tex.   155;  Stat.  Kas.  (1889),  §  235. 

Newton   v.   Calhoun,    68    Tex.   451;  '  Bebb    v.    Crowe,    39    Kas.    342; 

Petty  V.  Barrett,  37  Tex.  84 ;  Batts  v.  Mouriquand  v.  Hart,  22  Kas.  596. 

Scott,  37  Tex.  65 ;  Philleo  v.  Smalley,  sfjiatt  v.  Bullene,  20  Kas.  557 ;  Tar- 

23  Tex.  498.  rant  v.  Swain,  15  Kas.  146 ;  Moore  v. 

3  Garrett  v.  Weaver,  70  Tex.  463;  Reaves,  15  Kas.  150;  Parian  v.  Sook, 

Tex.  Rev.  Stat.,  §§  3942,  3947.  26  Kas.  397 ;  Ashton  v.  Ingle,  20  Kas. 

*  Mills  V.  Brown,  69  Tex.  244.  670.     But  see.  as  favoring  construct- 

5 Minn.  Gen.  Stat,  cb,  68,  §9;  Ja-  ive  occupancy  :  Swenson  v.  Kiehl,  21 
coby  v.  Distilling  Co.,  41  Minn.   227,  Kas.  533;  Gilworth  v.  Cody,  21  Kas. 
230 ;  Baillif  v.  Gerhard,  40  Minn.  172 ;  702 ;  Monroe  v.  May,  9  Kas.  466  ;  Ed- 
Russell  V.  Speedy,  38  Minn.  303 ;  Urn-  wards  v.  Fry.  9  Kas.  424. 
land   V.    Holcombe,    26    Minn.    286; 


182  '  OCCUJ'ANCY. 

good,  though  his  wife  did  not  join  in  the  deed.  She  lived  out 
of  the  state  all  the  time  he  had  occupied,  and  therefore  there 
had  been  no  such  occupancy  by  his  family  as  to  give  the  ex- 
emption right,^ 

Under  similar  statutory  requirement,  similar  ruling  has  been 
had.  It  is  held  that,  should  the  husband  alone  mortgage  his 
land  exceeding  in  quantity  the  statutory  limit,  it  would  hold 
good  as  to  the  excess.-  And  it  will  hold  good  for  the  whole, 
if  the  claimant  of  homestead  do  not  show  actual  occupancy, 
with  selection  of  the  legal  quantity  exempt,  at  the  time  the 
mortgage  was  executed.^ 

Actual  occupancy  of  the  new  homestead,  when  an  old  one 
has  been  exchanged  for  it,  has  been  held  necessary  in  order  to 
give  it  the  exempt  character.* 

A  mere  tarrying  for  a  night  at  a  new  place,  followed  by  a 
declaration  of  that  place  as  the  family  homestead ;  but  not  by 
actual  residence  there,  will  not  be  sufficient  to  make  a  legal 
change  of  homestead.'  Actual  occupancy  is  the  rule^  as 
against  constructive; ''  and  where  it  is  not  applicable,  the  stat- 
ute will  be  found  to  authorize  exemption  of  a  certain  sum,  in 
favor  of  the  insolvent  debtor,  rather  than  to  protect  his  home- 
stead. 

§  5.  Principal  Use. 
A  declaration  of  homestead  covered  two  adjoining  lots,  both 
together  within  the  statutory  limitation  of  value.  The  fam- 
ily dwelling  was  upon  one,  and  a  business  house  and  chicken 
yard  upon  the  other.  Only  the  first  lot  was  held  duly  dedi- 
cated and  exempt.^  The  decision  was  based  on  a  former  one, 
in  which  it  had  been  said:  "It  is  the  principal  use  to  which 
the  property  is  put,  and  not  quantity,  which  furnishes  the  test 

1  Koons  V.  Rittenhouse.  28  Kas.  359.  *  Fromans  v.   Mahlnian  (Cal.),    27 

2Goodloe  V.  Dean,  81  Ala.  479;  De  Pac.  1094;  Cal.  Civ.  Code,  §  1263. 

Gratf enreid   v.  Clark,   75    Ala.  425 ;  6  Lubbock  v.  McMann,  82  Cal.  228, 

Butts  V.  Broughton,  72  Ala.  294.  and  other  cases  cited  in  Fromans  v. 

3  Goodloe  V.  Dean,  81  Ala  479.  Mahlman. 

*  Currier  v.   Sutherland,  54  N.  H.  '  True  v.  Morrill.  28  Vt.  672 ;  Davis 

475,   487;    Tucker  v.    Kenniston,  47  v.   Andrews,  30  Vt.    683;  Spaulding 

N.   H.   267.     See    Fogg   v.   Fogg,  40  v.  Crane,  46  Vt.  292;  Lee  v.  Miller.  11 

N.  H.  282,  and  Locke  v.  Rowell,  47  Allen,  37. 

N.  H.  46.  s  la  re  Allen,  78  CaL  293. 


PKINCIPAL    USE.  183 

in  determining  the  question  whether  or  not  property  is  sub- 
ject to  dedication  as  a  homestead.  And  if  only  a  part  of  the 
land  described  in  the  homestead  declaration  be  actually  used 
and  appropriated  as  the  home  of  the  family,  the  remainder 
not  so  used  and  appropriated  forms  no  part  of  the  homestead 
claim  in  the  sense  of  the  statute."  ^ 

The  principal  use  is  the  test  of  homestead.  If  it  is  for  fam- 
ily living,  the  law  means  to  protect  it  from  forced  sale.  If  it 
is  for  making  money  by  renting  to  tenants  and  the  like,  the 
property  may  be  subjected  to  forced  sale.^ 

The  claimant  of  an  urban  homestead,  who  has  kept  it  rented 
to  tenants  ever  since  building  upon  it,  using  himself  only  a 
roadway  upon  it,  can  claim  exemption  only  with  regard  to 
the  strip  thus  used.  The  court,  so  holding,  said  that  to  pro- 
tect the  rented  part  as  homestead  "  would  be  a  perversion  of 
the  spirit,  letter  and  purpose  of  the  constitution;"  .  .  . 
"  would  be  an  extravagant,  not  a  liberal  construction."  ^ 

The  owner  of  a  hotel  lived  in  it  with  his  family ;  but  as  it 
was  used  "  primarily  and  principally  as  a  hotel  for  the  accom- 
modation of  the  public,"  while  the  residence  therein  of  the 
owner  and  his  family  "  was  but  incidental  to  the  business  of 
running  the  hotel,"  it  was  held  that  "  it  would  be  doing  vio- 
lence to  the  statute  to  regard  property  so  used  as  a  home- 
stead, which  is,  and  was  intended  to  be,  the  place  where  the 
home  is."  * 

But  there  is  a  late  case  in  which  it  is  held  that  a  building 
occupied  by  a  hotel-keeper  and  his  family  may  be  used  for  the 
sole  purpose  of  conducting  a  hotel,  yet  be  exempt  as  a  home- 
stead, under  a  statute  making  occupancy  a  condition.  The 
court  said  that  to  hold  otherwise  "  w^ould  be  in  plain  defiance 
of  the  statute  and  would  render  it  nugatory  as  to  those  en- 

iMaloney  v.   Hefer,   75    Cal.   422,  Tex.  39;  Wynne  v.  Hudson,  66  Tex.  1. 

citing  Ackley  v.  Chamberlain,  16  Cal.  The  rented  premises  (m  the  first  case 

182 ;  S.  C,  76  Am.  Dec.  516 ;  Gregg  cited)  had  been  a  part  of  the  claini- 

V,  Bostick,  supra.  ant's    homestead,   but  the    buildmg 

2  Blum  V.  Rogers  (Tex.),  15  S.  W.  upon  it  for  renting  purposes,  and  the 
115;  Garrett  v.  Jones  (Ala.),  10  So.  actual  and  continued  renting,  consti- 
702.  tuted    abandonment     Arcliibald    v. 

3  Blackburn   v.    Knight,  16  S.  W,  Jacobs,  69  Tex.  249. 

(Tex.)  1075 ;  Medlenka  v.  Downing,  59        ^  Laughlin  v.  Wright,  63  CaL  13a 


184  OCCUPANCY. 

gaged  in  the  business  of  hotel-keeping.  The  benefits  of  this 
statute  are  to  be  secured  to  all  owners  of  land  which  they  oc- 
cupy with  their  families,  and  who  have  no  other  home.  There 
is  ncy  intent  apparent  anywhere  to  exclude  the  families  of 
hotel-keepers  from  the  benefits  of  this  act."  ^ 

The  syllahus  puts  the  point  more  strongly  jierhaps  than  the 
court:  " Tlie  homestead  exemption  may  be  claimed  in  prem- 
ises occupied  by  the  owner  exclusively  for  hotel  purposes,  if 
his  famdy  reside  therein  and  have  no  other  residence  or 
home."  ^ 

Granting  that  the  latest  decision  on  the  point  makes  law  for 
its  own  state,  the  doctrine  of  principal  use  as  family  home 
prevails  elsewhere.^ 

A  homestead  used  for  the  sale  of  intoxicating  liquors  in 
contravention  of  statute,  by  the  owner  with  his  wife's  knowl- 
edge and  consent,  was  subjected  to  the  satisfaction  of  a  judg- 
ment recovered  for  such  violation  of  law.* 

And,  in  a  later  case,  property  thus  prostituted  by  the  owner, 
without  the  consent,  and  against  the  remonstrance,  of  his  wife, 
was  held  liable.  The  court  said :  "  The  consent  by  the  wife  is 
not  required  when  the  husband  is  the  owner.  It  may  be  that 
this  consideration  of  the  law  will  in  some  cases  cause  a  loss  of 
homestead  rights,  and  lead  to  hardships;  but,  if  so,  it  is  be- 
yond our  control.  We  must  interpret  the  law  as  we  find  it. 
The  general  assembly  may  have  thought  it  better  to  make  the 
homestead  liable  in  such  cases  than  to  permit  the  homestead 
right  to  operate  as  a  shield  for  the  protection  of  the  offender 
against  the  consequences  of  his  wrongful  acts."  '" 

A  part  of  a  homestead  may  lose  its  exempt  character  by  its 
devotion  to  business  purposes  when  it  can  no  longer  be  con- 
sidered as  an  appurtenance  of  the  part  occupied  as  a  family 
residence.* 

» King  V.  Welborn,  83  Mich.  195 ;  3  Rhodes  v.  McCormick,  4  la.  374 ; 

Howell's  Mich.  Stat.,  §  7721.    Contra:  In  re  Noah,   73  Cal.   590;  Mann  v. 

Laughlin  v.  Wright.  63  Cal.  113.    See  Rogers,  35  Cal.  319 ;  Gregg  v.  Bost- 

Green  v.  Pierce,  00  Wis.  372 ;  Philleo  wick,  33  Cal.  228 ;  Ackley  v.  Cham- 

V.  Smalley,  23  Tex.  498.  berlain,    16    Cal.    183 ;    Laughlin    v. 

2  Citing  the  statute  and  section,  as  Wright,  63  Cal.  113. 

above.     See  Geney   v.    Maynard.   44  ■•  Arnold  v.  Gotshall,  71  la.  572. 

Mich.  578;  Dyson  v.  Sheley,  11  Mich.  ^McClure  v.  Braniff,  75  la.  38,  43. 

52a  eii,,;  Smith  v.  Quiggans,  65  la.  637. 


SUBOEniNATE    USES.  185 

§  (>.  Subordinate  Uses. 

When  homestead  has  been  declared  upon  premises  already 
subjected  to  family  occupancy,  and  the  whole  are  used  as  a 
home,  the  subordinate  employment  of  a  part,  in  connection 
with  the  whole,  for  purposes  which  would  not  in  themselves 
be  adequate  to  entitle  that  part  to  exemption,  may  not  always 
be  such  as  to  divest  it  of  the  homestead  character  appertaining 
to  the  whole.^ 

Since  a  shop  used  by  the  householder,  situated  in  his  exempt 
premises,  may  be  considered  a  part  of  his  homestead,  so  a  part 
of  the  dwelling,  appropriated  to  business  purposes,  may  be  so 
considered.^ 

A  dwelling-house,  used  for  storing  household  furniture, 
while  the  building  is  undergoing  repairs,  and  the  family  board- 
ing temporarily  in  a  neighboring  house  awaiting  the  comple- 
tion of  the  repairs,  has  been  deemed  the  habitation  of  the 
family.^ 

A  vacant  lot,  situated  on  one  side  of  a  public  square  while 
its  owner's  family  residence  was  on  the  other,  occasionally 
used  as  a  place  for  staking  out  a  horse  and  cow,  was  not  such 
use  for  "  homestead  purposes  "  as  would  shield  it  from  cred- 
itors.'' Such  use  is  often  difficult  of  ascertainment,  giving  rise 
to  many  questions  in  the  application  of  the  law  to  particular 
circumstances.^ 

The  burden  of  proof  is  on  him  who  claims  a  place  as  his 
principal  home  and  therefore  exempt,  when  he  is  living  away 
from  it  temporarily.** 

iLazell  V.  Lazell,  8  Allen,  576 ;  West  Arto  v.  ]\Iaydole,  54  Tex.  247 ;  Pere- 

River  Bank  v.  Gale,  42  Vt.  27 ;  Hub-  gov  v.   Kottwitz,  54   Tex.   500 ;  An- 

bell   V.  Canaday,  58  111.  427 ;  Orr   v.  drews    v.    Hagadon,   54    Tex.     575 ; 

Shraft,  22  Mich.  260 ;  Clark  v.  Shan-  Barnes  v.  White,  53  Tex.  631 ;  Evans 

non,   1    Nev.    568 ;    Englebrecht    v.  v.  Woniack,  48  Tex.  232 ;  Moreland 

Shade,  47  Cat.  628 ;  Estate  of  Delaney,  v.   Barnhart,  44  Tex.  279 ;  Anderson 

37  Cal.  176 ;  Orubaum  v.  His  Cred-  v.  McKay,  30  Tex.  186 ;  Franklin  v. 

itors,  61  Cal.  457;  Klenk  v.  Knoble,  Coffee,    18    Tex.    413;    Methery    v. 

37Ark.  288;  Achilles  v.  Willis,  81  Tex.  Walker,    17   Tex.   593;    Gay   v.   Mc- 

169 ;  Moore  v.  Whitis,  30  Tex.  440.  Guffin,   9   Tex.    501 ;    Wells   v.   Bar- 

2  W^right    V.   Ditzler,   54    la.    620 ;  nett,  7  Tex.  584 ;  Hardy  v.  De  Leon, 
Smith  V.  Quiggans,  65  la.  637.  5  Tex.   211;  Englebrecht  v.   Shade, 

3  Neal  v.  Coe,  35  la.  407.  47  Cal.  627. 

*  Effinger  v.  Gates,  61  Tex.  590.  *>  The  claimant  of  an   urban  and 

5  Miller  v.   Menke,   56    Tex.    562 ;     country    homestead,    who    lives    in 


ISG  OCCUPANCY. 

"  The  almost  uniform  current  of  decisions  is  that  actual  oc- 
cupation of  property,  as  a  home  of  the  family,  is  necessary  to 
impress  upon  it  the  cliaracter  of  a  homestead."  ^  Yet  where  one 
hundred  and  sixty  acres  were  allowed  as  a  rural  homestead,  it 
was  held  that  the  portion  not  employed  by  the  residence  and 
inclosures  might  be  devoted  to  any  use  without  forfeiture  of 
the  exemption  right  ;'^  which  is,  however,  no  exception,  since 
the  actually  occupied  home  must  be  held  in  conjunction  with  the 
land.  And  even  if  it  is  a  little  apart  from  the  land,  it  may  give 
the  exempt  character  to  the  latter,  for  it  is  held :  Actual  occu- 
pancy as  owner,  tenant  at  will,  or  lawful  possessor  under  any 
title,  entitles  the  head  of  a  family  living  with  him  to  home- 
stead right  of  a  stated  value.  The  dwelling  may  stand  apart 
from  a  farm  cultivated  by  the  exemption ist,  and  be  held  under 
a  different  title,  yet  both  together  may  constitute  the  home- 
stead as  understood  by  the  legislator.^ 

Actual  occupancy  being  required,  it  is  held  the  farming  of 
land  upon  shares  but  not  living  upon  it,  though  living  in  a 
house  adjoining,  is  not  a  possession  of  such  land  as  a  home- 
stead, and  does  not  render  it  exempt.^ 

An  owner  of  two  lots,  who  resides  with  his  family  upon 
one,  and  rents  the  other  with  the  building  thereon  to  a  tenant, 
cannot  have  homestead  in  the  latter,  under  a  statute  which 
defines  the  homestead  as  "  the  dwelling-house  in  which  the 
claimant  resides  and  the  land  on  which  the  same  is  situated." ' 

One  who  remained  as  tenant  of  his  house  after  he  had  sold 
it,  and  cultivated  a  tract  adjoining,  at  the  same  time,  which 
he  owned,  and  upon  which  he  subsequently  built,  was  held  to 
hold  the  tract  exempt  from  execution.^ 

Occupancy  may  be  without  the  having  of  a  home  on  the 

town,  must  establish  that  the  country  bell  v.  Adair,  45  Miss.  170 ;  Mosely  v. 

part  claimed  is  used  for  homertead  Anderson,  40  Miss.  54. 

purposes,  in  Texas.     Keith  v.  Hynd-  *  Wade  v.  Wade,  9  Bax.  618. 

man,  57  Tex.  425.  »  civil  Code  of  Cal.,  §  1237 ;  Ma- 

iDrucker    v.   Rosenstein,    19    Fla.  lone   v.   Hefer,   75   Cal.  422;    In  re 

191,  195 ;  Oliver  v.  Snowden,  18  Fla.  Crowey,  71  Cal.  300 ;  Tiernan  v.  His 

823,  h'34.  Creditors,  62  Cal.  286 ;  Blackburn  v. 

2  McDougall  V.  Meginniss,  21  Fla.  Knight,  81  Tex.  326. 

362 ;  Baker  v.  The  State,  17  Fla.  406.         «  Bennett    v.    Baird.   81     Ky.    554. 

3  King  V.  Sturges,  56  Miss.  606 ;  Compare  Brown  v.  Martin,  4  Bush, 
Porter  v.  Stewart,  50  Miss.  717;  Camp-    47. 


SUBORDINATE    USES.  187 

property  occupied,  when  one  lives  in  a  hired  dvveUing  and 
employ  his  own  contiguous  or  near-lying  land  as  j)art  of  his 
home  place  —  there  being  no  house  on  the  premises.  So  it 
was  said :  If  the  exemptionist  "  owning  and  occupying  a  house 
and  an  adjoining  garden  had  sold  the  house  and  the  land 
under  it,  but  had  continued  to  own  and  occupy  the  garden, 
and  as  a  lessee  had  remained  in  the  house,  the  garden  might 
continue  to  be  a  part  of  the  place  of  his  home ;  and  adjacency 
is  not  a  requisite  of  the  homestead  right."  ^ 

A  dwelling-house  is  essential  in  some  states.'^ 

Upon  exchange  of  homesteads,  the  temporary  continuance 
of  occupation  by  one  of  the  parties  after  having  ceased  to  own 
his  residence  is  not  such  a  blending  of  ownership  and  occu- 
pancy as  gives  the  right  of  exemption,  though  the  other  con- 
tracting party  consented  to  the  delay  in  removing.* 

A  homestead  house  on  leased  land  may  be  moved  to  an- 
other site,  and  preserve  its  exempt  character  during  transit. 
The  creditor  would  not  be  injured  by  the  transfer  of  the 
building;  from  one  rented  lot  to  another.  The  homestead 
character  is  none  the  less  protected  because  the  house  is  per- 
sonal property;  for  even  when  a  debtor  was  in  the  act  of  re- 
moving such  property  from  his  state,  it  was  held  inviolable 
as  to  a  creditor's  power  to  levy  upon  it.* 

A  father  deeded  his  farm  to  his  children  in  consideration  of 
their  caring  for  him.  He  and  they  continued  to  live  upon  it, 
and  he  was  held  to  have  retained  his  homestead  right.^  It  did 
not  matter  in  which  of  the  beneficiaries  the  title  was  lodged. 
All  the  members  of  the  family,  including  the  father,  had  home- 
stead rights.  The  necessary  ownership  and  exclusive  right  of 
possession,  under  some  title,  existed  in  the  family.     That  was 

^  Rogers  v.  Savings  Bank,  63  N.  H.  lot,  and  the  homestead  may  extend 

428;  Allen  v.  Chase,  58  N.  H.  419;  so  as  to  include  part  of  another  not 

Cole  V.  Bank,  59  N.  H.  53,  331.  joined  to  it,  to  make  up  the  value  of 

2  A  homestead  on  land  without  a  $500.     Hastie  v.   Kelly,  57  Vt.  293 ; 

dwelling-house  is  not  recognized  in  Spaulding  v.  Crane,  46  Vt.  297. 

Vermont.   R.  L.,  §  1894 ;  Rice  v.  Rudd,  3  vVindle  v.  Brandt,  55  la.  221. 

57   Vt.    6 ;  Bugbee   v.  Bemis,  50   Vt.  ^  Bunker  v.  Paquette,  37  Mich.  79, 

218 ;  Mills  v.   Grant's  Estate,  36  Vt.  citing    Woodbury     v.     Murray,     18 

269;  McCIary  v.   Bixby,  36  Vt.  269;  Johns.  (N.  Y.)  400. 

Nor  in  New  Hampshire.     Woodman  &  First  N.  Bank  v.  Warner,  23  Kas. 

V.  Lane,  7  N.  H.  245.     But,  in  Ver-  537. 
mout,  there  may  be  a  house  on  one 


188  OCCUPANCY. 

all  the  state  cared  for  in  its  effort  to  conserve  and  foster 
homes. 

Buildings  on  the  homestead  farm,  or  city  reservation,  con- 
stitute no  })art  of  the  homestead  and  are  liable  for  debts  when 
they  are  used  for  other  jjurposes  than  that  of  the  owner's 
home  or  as  appurtenances  to  that  home.  Dwelling-houses  on 
such  land,  rented  to  tenants,  may  be  the  homesteads  of  those 
tenants,  but  they  form  no  part  of  the  owner's  residence,  and 
are  not  exempt  as  his  property,  but  subject  to  general  judg- 
ment liens.^ 

The  main  use  of  a  dwelling  being  that  of  a  home  for  a 
family,  other  subordinate  uses  will  not  destroy  its  homestead 
character.  Such  subordinate  uses  may  be  its  employment  in 
part  for  business  purposes,  even  by  one  renting  a  portion  of 
the  house  for  the  purpose,  without  the  forfeiture  of  the  ex- 
emption right.2 

A  tenement  was  held  to  be  protected  as  a  homestead,  in  a  case 
described  by  the  pleadings  as  "  an  open  and  notorious  house 
of  prostitution,  used  and  kept  as  such  by  [the  homestead  bene- 
ficiary], and  well  known  to  be  such  by  him  and  his  faiiily." 
It  was  also  used  as  a  place  for  selling  liquors  ''  without  license 
and  contrary  to  law."  Without  the  payment  of  the  required 
tax  in  advance  is  evidently  meant. 

The  court,  assuming  that  such  was  the  character  of  the 
premises,  held  them  exempt  as  a  homestead,  notwithstanding 
the  criminal  purposes  to  which  they  were  prostituted.*  The 
law  contemplates  the  conservation  of  lawful  homes  only. 

1  Ashton  V.  Ingle,  20  Kas.  670 ;  were  occupied  by  the  family.  "  This 
Kirkwood  v.  Koester,  11  Kas.  471;  occupation  would  usually  be  sufiS- 
Greeley  v.  Scott,  2  Wood,  657 ;  Cas-  cient  to  make  it  the  residence  of  the 
selman  V.  Packard,  16  Wis.  114;  Kurz  family,  and  bring  it  within  the  pro- 
V.  Bursch.  13  la.  371 ;  Rhodes  v.  Mc-  visions  of  the  homestead  law  in  this 
Cormick,  4  la.  368  ;  Hoit  v.  Webb,  36  state,"  said  the  court,  citing  Rush  v. 
N.  H.  158;  Gregg  v.  Bostwick,  33  Gordon,  38  Kas.  535 ;  Hogau  v.  Man- 
Cal.  220;  Iken  v,  Olenick,  42  Tex.  ners,  23  Kas.  551 ;  In  7-e  Tertelling,  2 
195.  Confra,  Hancock  V.  Morgan,  17  Dill.  339;  Phelps  v.  Rooney,  9  Wis. 
Tex.  582 ;  Nolan  v.  Reed,  38  Tex.  525  ;  '  70  ;  Kelly  v.  Baker,  10  Minn.  154  ; 
Hubbell  V.  Canaday,  58  111.  425 ;  Kelly  Umland  v.  Holcombe,  26  Minn.  288 ; 
V.  Baker,  10  Minn.  154;  Clark  v.  Gainus  v.  Cannon,  42  Ark.  503.  See 
Shannon,  1  Nev.  568.  Heathman  v.  Holmes  (Cat),  29  P.  404. 

2  Bebb  V.  Crowe,  39  Kas.  342.  The  »  Prince  v.  Hake,  75  Wis.  638,  dis- 
second  story  of  the  main  building,  tinguishing  Walsch  v.  Call,  32  Wis. 
and  part  of  the  first,  and  of  the  cellar,  159. 


INTENTION    TO    OCCUPY.  189 

§  1.  Intention  to  Occnpy. 

"Occupancy  is  essential  to  the  existence  of  tlie  homestead 
right,  and,  for  the  purpose  of  its  creation  or  inception,  the  oc- 
cupancy must  be  actual;  but  when  the  premises  have  become 
invested  with  the  homestead  character,  and  a  homestead  has 
been  once  acquired,  a  constructive  occupancy  may  be  sufficient 
to  retam  it,  and  it  will  not  be  lost  by  a  temporary  absence 
with  no  intention  of  abandonment.  The  statute  exempts  only 
a  homestead  in  fact,  the  ]:)lace  of  the  home.  It  does  not  un- 
dertake to  exem})t  a  contemplated  future  homestead,  and 
therefore  the  mere  intention  to  occupy  the  premises  at  some 
future  time  as  a  home,  without  actual  occupancy,  is  insuffi- 
cient to  impress  upcjn  them  the  homestead  character,"' 

Residence  and  intention  to  remain  are  necessary  to  the  ac- 
quisition of  domicile.^  Mere  intent  is  insufficient;  but  it  is 
all-important  when  domicile  has  first  been  acquired,  and  the 
question  of  giving  it  up  is  to  be  decided.* 

As  was  said  by  the  Chief  Justice  of  the  United  States :  "  A 
secret  intention  of  the  seller,  not  made  known,  cannot  affect  a 
purchaser.  Unless  the  purchaser  knew,  or  from  the  circum- 
stances ought  to  have  known,  that  the  lots  were  a  part  of  the 
homestead,  he  had  the  right  to  treat  with  and  purchase  from 
the  husband  without  the  concurrence  of  his  wife."  And  he 
held,  for  the  Supreme  Court,  that  a  mere  intention  to  make 
a  lot  part  of  the  homestead,  and  the  building  of  a  kitchen 
upon  it  after  its  sale,  will  not  clothe  the  lot  with  the  exemption 
character,^ 

The  testimony  of  an  interested  witness  in  his  own  favor, 
that  during  his  absence  with  his  family  he  secretly  intended 
to  resume  his  home,  is  of  little  worth  in  the  absence  of  cir- 
cumstances to  sustain  it.  What  was  locked  within  his  breast 
during  his  absence,  no  other  person  can  know.'^ 

1  Currier  v.  Woodward,  62  N.  H.  63,  Hansford  v.  Holdam,  14  Bush,  210 
in  exposition  of  Gen.  L.,  ch.  138,  §  1.  (qualifying  Brown  v.  Martin,  4  Bush, 

2  Leach  v.  Pillsbury,  15  N.  H.  137 ;  50) ;  AVade  v.  Wade,  9  Bax.  (Teun.) 
Foss  V.  Foss,  58  N.  H.  283 :  Norris  v.  612 ;  Murchison  v.  Plyler,  87  N.  C.  79. 
Moulton,  34  N.  H.  392  ;  Holmes  v.  ■*  Hart  v.  Lindsey,  17  N.  H.  235,  243. 
Greene,  7  Gray,  299,  301;  Horn  v.  ^Qrosholz  v.  Newman,  21  Wall. 
Tufts,  39  N.  H.  498 ;  Austin  v.  Stan-  481.     (The  case  from  Texas.) 

ley,  46  N.  H.  51 ;  Snapp  v.  Snapp.  87        »  Spaulding  v.  Crane,  46  Vt.  300. 
Ky.  554 ;  Tant  v.  Talbot,  81   Ky.  23 ; 


190 


OCCUPANCY. 


Use  and  intent  must  co-exist  in  order  to  impress  the  home- 
stead stamp  upon  real  estate.^  It  has  however  been  held  that 
if  the  head  of  a  family  buys  the  site  of  an  intended  liome  and 
begins  to  build  a  family  dwelling-house  on  it  with  the  inten- 
tion of  occupancy  by  him  and  his  family,  he  has  the  home- 
stead immunity  before  actually  moving  upon  the  premises, 
and  cannot  convey  the  property  without  his  wife's  joinder  in 
the  deed.^ 


1  Fort  V.  Powell.  59  Tex.  321 ;  An- 
drews V.  HagadoD,  54  Tex.  571 ;  Jor- 
dan V.  Imthurn,  51  Tex.  276. 

2  Dobkins  v.  Kuykendall,  81  Tex. 
180 ;  16  S.  W.  743.  Gaines,  J.,  after 
stating  the  case :  "  In  1888  the  plaint- 
iff brought  this  suit  against  both  the 
husband  and  the  wife.  It  was  in  the 
ordinary  form  of  trespass  to  try  title. 
The  defendants  answer  that  they 
bought  the  land  intending  to  make  it 
their  homestead,  and  made  prepara- 
tions to  improve  it  for  that  purpose; 
that  they  had  never  abandoned  it, 
and  had  not,  since  the  purchase, 
owned  any  other  land.  She  also 
pleaded,  in  effect,  that  when  defend- 
ant Simon  Kuykendall  bought  of 
plaintiff  he  intended  to  buy,  and 
plaintiff  intended  to  sell,  all  the  land 
lying  between  the  Powers,  the  Meis- 
enhelter,  the  Keith,  and  Lauderdale 
surveys,  and  prayed  that,  if  the  deed 
should  not  be  construed  to  convey 
the  whole  of  that  tract,  it  should  be 
reformed  in  accordance  with  the 
real  contract  of  the  parties.  In  the 
view  we  take  of  the  case,  it  is  suffi- 
cient to  say  that  there  was  testimony 
tending  strongly  to  show  that  the 
plaintiff  intended  to  sell  the  land  as 
claimed  by  the  defendants.  On  the 
other  hand,  the  plaintiff's  testimony 
in  rebuttal  was  sufficient  to  author- 
ize the  jury  to  have  found  that  only 
eighty  acres  or  a  little  more  was  in- 
tended to  be  conveyed.  The  court 
charged  the  jury,  in  effect,  that  if, 
when  the  plaintiff  conveyed  to  Kuy- 


kendall, it  was  the  intention  of  the 
grantor  to  sell,  and  of  the  grantee  to 
buy,  only  the  eighty-two  or  eighty- 
three  acres  of  land  lying  west  of  the 
tract  in  controversy,  they  should 
find  a  verdict  for  the  plaintiff;  and 
also  that,  if  their  intention  was  to 
convey  the  whole  of  the  tract,  then 
the  quitclaim  deed  from  Kuyken- 
dall to  plaintiff  reconveyed  the  land 
in  controversy  to  the  latter,  and  they 
should  also  find  a  verdict  for  the 
plaintiff,  unless  at  the  date  of  that 
deed  the  premises  were  the  home- 
stead of  the  defendants.  But  the 
jury  were  also  instructed  that,  if  it 
was  the  intention  of  the  parties  to 
the  first  deed  to  convey  the  whole 
tract,  and  if  the  defendants  had  dedi- 
cated it  as  their  homestead  when 
Kuykendall  made  the  deed  to  plaint- 
iff, they  should  find  a  veixlict  for  the 
defendants.  The  jury  were  also  cor- 
rectly instructed  as  to  what  acts 
were  necessary  to  constitute  a  dedi- 
cation of  land  as  a  homestead  when 
there  had  been  no  actual  occupancy 
as  a  residence.  The  jury  having 
found  for  the  defendants,  and  judg- 
ment having  been  rendered  accord- 
ingly, the  plaintiff,  having  appealed, 
now  complains  that  '  the  court  erred 
in  making  a  charge  to  the  jury  upon 
the  homestead  question.'  It  is  in- 
sisted that  there  was  no  evidence  to 
warrant  a  charge  upon  that  issue. 
In  reference  to  this  assignment,  it  is 
sufficient  to  say  that  the  undisputed 
testimony  showed  that  the  defend- 


INTENTION    TO    OCCUrY. 


191 


"  The  actual  use  of  a  lot  for  the  convenience  of  the  family 
has  always  been  regarded  as  the  most  satisfactory  evidence  of 
an  intention  to  make  it  part  of  the  homestead.  In  reported 
cases  involving  controversies  over  the  intent,  this  best  evidence 
of  it  did  not  generally  exist,  and  the  determination  of  the 
issue  has  been  forced  to  other  means.  But  even  the  positive 
and  formal  declaration  of  both  husband  and  wife  of  a  con- 
trary intent,  as  has  been  held,  are  not  sufficient  to  divest 
property,  actually  used  as  a  homestead,  of  the  homestead  pro- 
tection, even  when  the  declaration  is  made  at  the  very  time  to 
which  the  issue  is  confined."  ^ 

Where  the  statutory  authorization  of  exemption  was  of  "  a 
dwelling-house,  out-buildings,  and  the  land  used  in  connec- 
tion therewith,  not  exceeding  five  hundred  dollars  in  value, 
and.  used  or  kept  by  the  householder  or  head  of  a  family  as  a 
homestead,"  it  was  construed  to  require  "  more  than  the  naked 
intention  of  the  head  of  the  family  to  make  the  premises  his 


ants  bad  made  such  preparations 
upon  the  land  as  evinced  their  inten- 
tion to  make  it  their  home,  and  that, 
under  the  rule  of  decision  in  this 
court,  by  such  act,  coupled  with  their 
intention  ultimatelj'  to  reside  upon 
it,  the  homestead  became  complete, 
and  continued  until  that  intention 
was  finally  abandoned.  Franklin  v. 
Coffee,  18  Tex.  413;  Moreland  v. 
Barnhart,  44  Tex.  275 ;  Barnes  v. 
White,  53  Tex.  628.  The  second  as- 
signment of  error  raises  the  same 
question  in  a  different  form.  The 
third  is  that  '  the  court  should  have 
charged  the  jury  that,  if  there  was 
any  ambiguity  in  the  description  in 
said  deed,  and  that  said  description 
needed  correction  to  conform  to  the 
true  facts,  the  defendant  Simon  Kuy- 
kendall  had  the  power  to  make  this 
correction  alone,  without  being 
joined  by  his  wife,  as  he  in  fact  did 
do  by  the  quitclaim  deed  introduced 
in  evidence.'  The  court  having 
charged  that  if  the  parties  to  the  deed 
from  the  plaintiff  to  Kuykendall  in- 
tended to  convey  only   the  eighty 


acres  Ij'ing  west  of  the  land  in  con- 
troversy, they  should  find  for  the 
plaintiff,  no  further  instruction  upon 
that  phase  of  the  case  was  either 
necessary  or  proper.  The  charge  is 
admirable  for  its  brevity  and  clear- 
ness, and  is  not  subject  to  any  just 
criticism.  It  is  also  insisted  that  the 
court  erred  in  not  granting  a  new 
trial,  because  of  the  errors  in  the 
charge,  and  because  the  evidence 
showed  {hat  there  was  no  intention 
to  convey  the  land  in  controversy  by 
the  deed  from  plaintiff  to  Kuyken- 
dall. The  evidence  upon  that  ques- 
tion was  conflicting,  and  it  was  the 
province  of  the  jury  to  weigh  the 
testimony  and  to  determine  the  issue. 
Even  if  the  verdict  should  appear  to 
us  to  be  against  the  weight  of  the 
evidence,  we  could  not  disturb  it." 

iRuhl  V.  Kauffman,  65  Tex.  734, 
citing  Jacobs  v.  Hawkins,  63  Tex.  1 ; 
Radford  v.  Lyon,  65  Tex.  471 ;  Med- 
lenka  v.  Downing,  59  Tex.  32.  See 
First  National  Bank  of  San  Luis 
Obispo  V.  Bruce  (Cat),  29  P.  586 ;  Cal. 
Civ.  Co  le,  §  1241  (4). 


192  occiTi'ANcjy. 

family  home,  at  some  incUifinite  future  time,  to  establish  a 
homestead  right.  One  of  two  conditions  is  essential  to  the 
existence  of  a  homestead  right  under  the  statute.  There  must 
be  either  an  actual  personal  use,  by  the  head  of  the  family,  of 
a  dwelling-house  and  lands  appurtenant  as  a  family  home,  or 
an  actual  keeping  b}"  him  of  the  same  for  a  family  home  with 
the  present  right  and  purpose  of  so  using  it.  .  .  .  To  give 
the  construction  contended  for  the  Avord  '  kept '  would  be  add- 
ing an  additional  ground  or  condition  to  the  statute  for  ac- 
quiring a  homestead  and  establish  a  dangerous  precedent  in 
this  class  of  cases,  as  the  intention  of  the  head  of  the  family, 
being  locked  up  in  his  own  breast,  would  not  be  known  to,  or 
readily  ascertainable  by,  persons  dealing  with  him.  Such  a 
doctrine  would  be  productive  of  fraudulent  claims  to  home- 
steads upon  testimony  that  would  be  difficult  to  meet  and 
practically  disprovable.     .  Where  the   premises   have 

never  been  used  or  kept  as  a  homestead  by  the  head  of  the 
famil}^  he  can  acquire  no  right  to  a  homestead  therein  by  a 
mere  intention  to  use  them  as  such  at  some  indefinite  future 
time."  ' 

Intent  to  occupy,  not  carried  out  till  a  lien  has  attached, 
will  not  avail  to  defeat  the  lien.- 

He  who  has  voluntarily  put  a  lien  upon  his  land  cannot  de- 
feat its  vindication  on  the  plea  that  he  had  purchased  the  land 
for  a  homestead  and  that  he  and  his  wife  had  designed  it  for 
that  use,  if  he  lived  with  her  and  the  rest  of  his  family  on 
other  premises  when  he  gave  the  lien,  though  the  dwelling  he 
then  occupied  and  owned  was  on  leased  land.^ 

1  Keyes  v.  Bump,  59  Vt.  395  ;  True  Solaiy  v.  Hewlett,  18  Fla.  756 ;  Oliver 
T.  Estate  of  Morrill,  28  Yt.  672:  v.  Snowden,  17  Fla.  823;  Leev.  Miller, 
Spaukling  v.  Crane,  46  Vt.  292 ;  Bug-  11  Allen  (Mass.),  87  ;  Faut  v.  Talbot, 
bee  V.  Bemis,  50  Vt216;  West  River  15  Ky.  712;  Williams  v.  Darris,  31 
Bank  v.  Gale,  42  Vt.  27;  Davis  v.  Ark.  466;  Charles  v.  Lamberson,  1 
Andrews,  30  Vt.  678.  In  Vermont,  la.  435 ;  Cole  v.  Gill,  14  la.  527 ; 
the  finding  of  a  county  court  that  ("hristy  v.  Dyer,  14  la.  488;  Elston  v. 
premises  are  "  used  or  kept "  as  a  Robinson,  23  la.  208 ;  Holden  v.  Pin- 
homestead  is  conclusive.  Russ  v.  ney,  6  Cal.  235.  Mere  intent  without 
Henry,  58  Vt.  388 ;  Rice  v.  Rudd,  57  acting  is  nothing.  Greenman  v. 
Vt.  6 ;  Boyden  v.  Ward,  38  Vt.  628 ;  Greenman,  107  111.  404. 
Holmes  v.  Holmes'  Estate.  26  Vt.  536.  3  Johnson  v.  Martin,  81  Tex.  18 ;  16 

^Grosholz  v.    Newman.   21   Wall.  S.  W.  550.    Henry,  J. :"  This  suit  was 

481 ;    True  v.    Morrill,   28    Vt.   672 :  brought  by  the  appellee  to  recover 


INTENT    SUBSEQUENTLY    REALIZED. 


193 


§  8.  Intent  Subsequently  Realized. 

The  claimant  "  was  not  occupying  any  part  of  the  tract 
when  he  inherited  an  interest  in  it.  He  swears,  however,  that 
it  was  his  purpose  to  make  his  home  upon  the  land ;  and  if, 


the  amount  of  a  promissory  note, 
and  to  foreclose  a  deed  of  trust  made 
by  appellants  to  secure  it  The  ap- 
pellants pleaded  that  the  land  con- 
veyed by  the  deed  of  trust  was  their 
homestead.  The  cause  was  tried  by 
the  court  without  a  jury,  and  the 
following  findings  of  fact  were  filed 
by  the  judge:  'At  the  time  of  the 
execution  of  said  note  and  deed  of 
trust  defendant  did  not  occupy  the 
land  in  controversy,  but  at  said  time 
he  and  his  wife  occupied  a  house  in 
the  town  of  Brownwood,  which  said 
house  belonged  to  defendant,  and 
was  used  by  him  as  a  place  of  busi- 
ness and  as  a  residence ;  and,  further, 
that  said  house  vras  situated  on  land 
which  was  leased  by  defendant  for  a 
term  of  five  years,  of  which  two  and 
one-half  years  had  expired.  At  the 
time  of  the  execution  of  said  note  de- 
fendant liad  inclosed  the  land  in  con- 
troversy, and  had  built  thereon  a  fish- 
pond or  water-tank,  and  had  put  fish 
therein.  He  had  also  cleared  away 
the  spot  of  land  upon  which  to  build 
a  house,  and  had  a  placed  thereon 
certain  stones  for  a  foundation 
thereof.  He  had  also  expressed  an 
intention  of  making  said  land  a  home 
for  himself  and  family.  No  other 
steps  were  taken  by  the  defendant 
towards  making  said  land  his  home 
until  more  than  one  year  after  the  ex- 
ecution of  said  note.  He  then  planted 
some  trees  on  said  land,  and  about  five 
months  thereafter  he  built  a  house, 
which  he  has  since  used  as  a  home 
for  himself  and  family.'  The  court 
concluded  that  at  the  time  of  the  exe- 
cution of  the  deed  of  trust  the  land 
was  not  entitled  to  exemption  as  a 
homestead,  and  gave  judgment  ac- 
13 


cordingly.  The  defendant  proposed 
to  testify  that  at  the  date  of  the  exe- 
cution of  the  deed  of  trust  he  owned 
no  homestead  except  the  land  in 
controversy.  The  evidence  was  ob- 
jected to,  and  excluded.  The  witness 
had  been  permitted  to  testify  to  the 
facts.  The  excluded  testimony  was 
merely  his  own  conclusion,  which  it 
■would  have  been  error  to  admit. 
The  defendant  also  proposed  to  testify 
that  the  land  was  purchased  by  him 
'  for  the  purpose  alone  of  a  home  for 
himself  and  his  family,'  and  that, 
prior  to  the  execution  of  the  deed  of 
trust,  he  and  his  wife  went  upon  the 
land,  '  and  mutually  designated  and 
set  apart  said  tract  of  land  as  their 
homestead  by  examining  the  same, 
and  by  agreeing  between  themselves 
that  the  same  should  become  their 
future  homestead,'  and  that  '  it  was 
their  intention  at  the  time  of  the  ex- 
ecution and  delivery  of  said  deed  of 
trust  to  make  a  homestead  out  of  the 
tract  of  land  upon  which  it  was 
given.'  To  whatever  extent  the  ex- 
cluded evidence  was  not  liable  to  the 
objection  that  it  was  a  statement  of 
a  conclusion  of  the  witness,  instead 
of  the  facts  upon  which  such  conclu- 
sion was  predicated,  it  must  be  held 
to  have  been  properly  rejected,  be- 
cause it  was  immaterial.  The  facts 
found  by  the  court,  that  the  defend- 
ant owned  a  house  situated  in  a  town, 
and  upon  laud  which  he  held  a  lease 
for,  in  which  he  resided  and  con- 
ducted his  business,  precluded  his 
acquisition  of  a  homestead  in  the 
country  by  the  performance  of  the 
acts,  and  with  the  intention  claimed 
by  him  to  have  existed.  We  think 
that  if  all  of  the  acts  with  regard  to 


194 


occur ANCT. 


after  lie  acquired  a  right  in  it,  he  manifested  this  intent,  his 
interest  would  be  protected  from  forced  sale."  ^ 

Intent,  with  slight  acts,  have  been  held  sufficient  to  acquire 
homestead,^ 

The  constitutional  authorization  that  a  homestead  occupied 
as  a  residence  by  the  family  of  the  owner  shall  be  exempted 
from  forced  sale  by  any  process  of  law,^  and  the  statutory 
provision  in  accordance,*  have  been  so  far  extended  by  the 
courts  as  to  exempt  unoccupied  property  when  there  were 
preparation  and  intention  to  make  it  a  residence.^ 

It  has  been  decided  in  several  states  that  the  purchase  of 
real  estate  to  be  occupied  as  a  homestead,  and  actually  so  oc- 
cupied as  soon  as  practicable,  renders  the  property  exempt  as 
such  from  the  date  of  the  purchase.® 

The  rule  varies  in  different  states.  In  one  it  is  said:  "To 
constitute  a  valid  claim  of  homestead,  there  must  be  actual 
occupancy  in  fact,  or  a  clearly-defined  intention  of  present 
residence  and  actual  occupancy,  delayed  only  by  the  time  nec- 
essary to  effect  removal  or  to  complete  needed  repairs  or  a 
dwelling-house  in  process  of  construction."  ^  So,  in  that  state, 
it  was  held  that  an  intestate,  who  bought  property  just  before 
his  death  with  the  view  of  repairing  it  and  making  it  his  home, 
should  be  regarded  as  having  established  it  as  his  homestead 


I 


the  land  in  controversy,  as  well  as 
the  purpose  or  intention  of  the  de- 
fendant with  regard  to  making  it  his 
future  place  of  residence,  be  ad- 
mitted, it  still  must  be  held  that  the 
house  that  he  was  occupying  in  town 
was  beyond  controversy  exempt  as  a 
homestead.  He  could  not  have  two 
exemptions  at  the  same  time.  It  is 
not  necessary  for  us  to  hold,  and  we 
do  not  now  decide,  that,  if  he  had 
owned  no  homestead  in  town,  the 
proof  was  not  sufficient  in  other 
respects  to  attach  the  exemption 
claimed  to  the  land  in  controversy. 
We  find  no  error  in  the  proceedings, 
and  the  judgment  is  affirmed." 

iCrabtree  v.  Whiteselle,  65  Tex. 
Ill,  114. 

2  Luhn  V.  Stone,  65  Tex.  489 ;  Brown 


V.  McLennan,  60  Tex.  43 ;  Jenkins  v. 
Volz,  54  Tex.  639 ;  Clements  v.  Lacy, 
51  Tex.  150. 

3  Const.  Kansas,  art.  15,  §  9. 

4  Gen.  Stat  Kas.  (1889),  §  235. 
5Swenson  v.  Kiehl,  21  Kas.  533; 

Gilworth  v.  Cody,  21  Kas.  702. 

6  Emporia  Ass'n  v.  Watson  (Kas.), 
25  Pac.  586;  Gilworth  v.  Cody,  21 
Kas.  702;  Harrison  v.  Andrews,  18 
Kas.  535 ;  Colby  v.  Crocker,  17  Kas. 
527;  Mitchell  v.  Milhoan,  11  Kas. 
617;  Edwards  v.  Fry,  9  Kas.  417; 
Monroe  v.  May,  9  Kas.  466 ;  Riggs  v. 
Sterling,  27  N.  W.  705 ;  Scofield  v. 
Hopkins,  61  Wis.  374 ;  Reske  v.  Reske, 
51  Mich.  541 ;  Crawford  v,  Richeson, 
101  111.  351;  Hanlon  v.  Pollard,  17 
Neb.  368. 

7  Blum  V.  Carter,  63  Ala.  235. 


INTENT   SUBSEQUENTLY   REALIZED.  195 

free  from  his  debts  when  his  widow  and  children  took  it  at 
his  death,  before  the  contemplated  improvement  and  occu- 
pancy had  been  accomplished.^ 

In  another  state,  it  is  judicially  said:  "  The  property  must, 
when  claimed  as  exempt,  be  stamped  with  the  character  of  a 
home  by  some  circumstance  other  than  the  intention  to  make 
it  so.  A  bare  lot  unoccupied  cannot  be  a  homestead.  Lum- 
ber placed  upon  it  for  the  purpose  of  building  is  not  occu- 
pancy, even  though  there  may  be  a  contract  made  for  the 
building.  ...  It  would  be  difficult  to  draw  the  line  where 
exemption  begins  to  attach  to  unoccupied  land,  if  this  claim 
of  immunity  is  allowed."  -  And  it  is  held  in  another  state, 
that  a  mere  intention  to  erect  and  occupy  a  dwelling  does  not 
impress  the  homestead  character  upon  the  site.' 

When  the  claimant  of  homestead  had  recorded  his  declara- 
tion of  intention  to  make  his  premises  his  homestead,  and  had 
begun  to  build  a  house  but  had  not  actually  occupied  it  as  the 
statute  required,  it  was  held  that  these  preliminary  acts  did 
not  avail  against  his  creditors.*  Here  was  a  strong  case  for  the 
claimant,  if  intention  ought  ever  to  avail  him.  He  had  noti- 
fied creditors  by  the  record,  and  had  openly  begun  to  build. 
In  some  states,  the  legal  requirements  of  occupancy  would 
have  been  so  construed  as  to  shield  him  from  his  creditors. 
Here  is  an  illustration  to  follow  —  but  it  must  be  remembered 
that  the  statutes  were  not  precisely  the  same,  under  which 
the  last  cited  and  the  next  cited  cases  were  tried. 

When  a  man  had  purchased  land,  and  begun  to  erect  a 
dwelling  and  a  business  house  on  it,  four  or  five  months  be- 
fore judgment  was  rendered  against  him,  he  was  allowed  to 
defeat  the  lien  of  the  judgment  by  moving  upon  the  land,  after 
the  decree  had  been  duly  recorded,  and  by  having  his  wife 
join  him  there  .some  three  months  after  he  had  gone  thither. 
He  claimed  to  have  intended  to  make  the  property  his  home- 
stead at  the  time  the  erection  of  the  buildings  was  begun. 
The  court  said :  "  Where  the  purchase  is  made  for  the  pur- 

1  Englehardt  v.  Yung's  Heirs,  76  Tumlinson  v.  Swinney,  23  Ark.  402; 
Ala,  534.  McKenzie  v.  Murpliy,  24  Ark.  157 ; 

2  Drucker  v.  Rosenstein,  19  Fla.  191,  Johnson  v.  Turner,  29  Ark.  280. 
198;  Solary  v.  Hewlett,  18  Fla.  756.  <Lee  v.  Miller,  11  Allen  (Mass),  3a 

3  Williams  v.  Dorris,  31  Ark.  466 ; 


196  OCCUPANCY. 

pose  of  a  homestead  with  a  view  to  an  early  occupancy,  and 
this  is  followed  in  reasonable  time  by  such  occupancy,  this 
may  secure  the  homestead  as  such  from  the  time  of  its  pur- 
chase. Some  time  must  usually  intervene  in  the  prepara- 
tion of  the  property  for  actual  occupancy,  and  the  homestead 
character  is  not  made  to  depend  on  the  personal  presence  of 
the  members  of  the  family."  ^  Not  on  the  personal  presence, 
but  on  family  occupancy ;  not  on  each  member  being  ready 
to  respond  at  call,  but  on  the  fact  that  the  property  is  the 
family  habitation.  Is  there  not  obscurity  in  the  last  clause 
of  the  above  quotation?  An  insolvent  debtor,  having  a  home- 
stead, cannot  have  another,  after  assignment  for  the  benefit 
of  his  creditors,  on  the  ground  that  he  has  begun  to  improve 
the  property  thus  claimed  and  intends  to  make  it  his  home- 
stead.2    Could  he  have  a  second  by  actual  occupancy? 

In  a  state  where  both  the  constitution  and  the  correspond- 
ing statute  require  that  the  homestead  shall  be  "  owned  and 
occupied"  by  the  exemptionist,' the  courts  formerly  under- 
stood that  actual  occupancy  was  meant;  but  now  there  is 
much  latitude  of  construction.  There  it  was  formerly  held 
that  actual  occupancy  by  a  family  is  a  requisite  to  the  enjoy- 
ment of  a  homestead  exempt  from  execution ;  that  the  mere 
ownership  of  the  prescribed  quantity  of  land  with  intent  to 
build  upon  it  and  to  make  it  the  family  residence  is  insufficient ; 
that  a  contemplated  residence  is  not  yet  a  residence;  that  the 
law  knows  no  exempt  home  in  futuro,  when  no  dwelling  or 
place  of  abode  of  any  kind  has  been  even  begun  to  be  erected ; 
that  there  must  be  a  homestead  in  fact  for  the  exemption  to 
protect  from  creditors.* 

Yet  the  intent  to  make  a  homestead  on  a  vacant  city  lot 

iVan  Eatcliflf  v.  Call,  72  Tex.  491  distinguished  from  Gardner  v.  Doug- 

(quotiug  and  approving  Gardner  v.  lass,  64  Tex.  79 ;  Swope  v.  Stanzen- 

Douglass,  64  Tex.  78) ;  Ruhl  v.  Kauflf-  berger,  59  Tex.  390 ;  Franklin  v.  Cof- 

nian,  65  Tex.  734 ;  Jacobs  v.  Hawk-  fee,  18  Tex.  417 ;    Barns  v.  White,  5 

ins,  63  Tex.  1 ;  Brooks  v.  Chatliam,  Tex.  628. 

57  Tex.  33 ;  Moreland  V.  Barnhart,  44-  » Const,    of    Michigan,    art.    XVI, 

Tex.   280 ;    Anderson  v.  McKay,   30  §§  1-4 ;  Howell's  Stat,  §§  7721-9. 

Tex.  190;  White  v.  Wadlington,  78  ^Coolidge  v.  Wells,  20  Mich.  87; 

Tex.  159.  Wisner  v.   Farnham,   2  Mich.   472; 

2  Archibald  v.  Jacobs,  69  Tex.  248,  Dyson  v.  Sheley,  11  Mich.  527. 


INTENT   SUBSEQUENTLY    BEALIZED.  197 

was  held  to  render  it  exempt.  The  owner,  having  purchased 
the  site  of  his  contemplated  home,  inclosed  it,  and  applied  its 
])roceeds  to  the  accumulation  of  a  fund  for  building  a  dwelling- 
house  on  the  lot,  was  held  to  have  it  exempt  from  forced  sale 
from  the  date  of  purchase  to  any  reasonable  time  within  which 
the  building  might  be  erected.  Whatever  the  particular  im- 
provements done  on  this  particular  site  with  the  viev/  of  mak- 
ing it  a  family  home,  the  law  was  broadly  stated  to  be  as  fol- 
lows :  "  A  city  lot  purchased  with  the  intention  of  making  it 
a  homestead  for  the  purchaser  and  his  family  will  be  exempt 
from  levy  and  sale  on  execution  from  the  time  of  purchase, 
even  though  unimproved  and  without  a  dwelling  thereon,  if  the 
purchaser  incloses  it  and  uses  and  occupies  it  with  the  con- 
stant purpose  of  making  it  his  home,  and  uses  the  proceeds 
thereof,  and  such  means  as  he  can  procure,  within  a  reason- 
able time,  to  erect  a  house  thereon  for  his  family,  provided  it 
does  not  exceed  in  quantity  and  value  the  constitutional  limit. 
What  will  be  regarded  as  a  reasonable  time  must  necessarily 
depend  upon  the  circumstances  of  each  particular  case."  ^ 

The  inclosing  of  a  lot  is  in  itself  no  indication  that  a  dwell- 
ing is  to  be  erected  upon  it,  in  the  state  where  this  decision 
was  rendered,  for  neither  fields  nor  city  residences  are  there 
required  to  be  fenced :  so  that  act  may  be  left  out  of  the  list 
of  reasons  given.  Occupancy  in  any  other  way  than  as  a  fam- 
ily home  gives  no  homestead  right,  in  face  of  the  constitu- 
tional condition  that  there  shall  be  occupancy  by  a  family  — 
for  in  that  sense  the  court  evidently  understood  the  word  as 
used  in  the  constitution,  while  a  different  sense  is  attributable 
to  it  in  the  quotation  above  made.  The  occupancy  of  a  city 
lot  as  a  market  place,  or  of  a  plantation  as  a  sheep-ranch,  is 
not  such  as  to  fulfill  one  of  the  conditions  necessary  to  the  en- 
joyment of  homestead  right. 

Omitting  this  second  reason  as  inapplicable,  let  us  see 
whether  the  third  —  using  the  proceeds  to  erect  a  house  — 
is  any  better  sustained.     Is  there  any  homestead  statute  in 

1  Deville  V.  Widoe,  64  Mich.  593, 556,  beck,    36    Mich.    399;  Bouchard    v. 

in  which  it  is  said:  "The  following  Bourassa,  57  Mich.  8;  Griffin  v.  Nich- 

autliorities  will  be  found  to  support  ols.  51  Mich.  575.     See.  also,  Scofield 

the  views  herein  expressed  :  Reske  v.  v.  Hopkins,  61  Wis.  370  (21  N.  W.  R. 

Reske,  51  Mich.  541 ;  Barber  v.  Rora-  259)." 


198  OCCUPANCY. 

any  state  of  the  Union  which  makes  the  disposition  of  the 
rents  and  profits  of  a  vacant  lot  or  houseless  plantation,  any 
ground  for  or  condition  to  the  enjoyment  of  homestead  ex- 
emption? If  not  in  the  statute,  a  court  cannot  supply  the 
omission  without  legislating. 

IS'othing  is  left  but  the  intention  of  building  and  occupying 
a  home.  The  court's  mention  of  the  inclosing,  occupying 
otherwise  than  as  a  home,  and  using  the  proceeds,  is  merely 
the  support  of  the  owner's  declaration  by  the  recital  of  cor- 
roborative facts.  Nothing  but  intent  remains.  Can  one  read 
the  constitutional  and  statutory  provisions  for  homestead,  and 
conclude  that  all  may  be  reduced  to  this? 

The  duration  of  the  time  in  which  intent  will  hold  the  home- 
stead right  depends  upon  circumstances,  if  the  decision  quoted 
above  be  sound.  In  the  case  decided,  it  held  good  some  three 
years.  There  might  be  a  case  in  which  a  worthy  man  (or  an 
unworthy  one,  for  the  law  makes  no  distinction  between  them 
relative  to  homestead  right,)  might  find  it  necessary  to  intend 
for  ten  years  before  his  savings  would  prove  sufficient  for  the 
erection  of  even  a  humble  home.^ 

The  subsequent  user  or  occupation  of  the  premises  as  a 
family  residence  has  no  retroactive  effect  so  as  to  render  the 
property  exempt  from  a  lien  antedating  the  erection  of  the 
building,  and  its  occupancy  by  the  family  of  the  owner.^ 

The  intent  to  occupy  must  not  only  antedate  the  subjection 
of  the  homestead  site  to  the  lien,  but  it  must  be  established  by 
circumstantial  or  other  evidence  to  have  had  such  ])rior  ex- 
istence; otherwise  (the  intent  being  questionable),  the  court 
where  this  doctrine  prevails  will  hold  the  homestead  right 
non-existing.^ 

The  same  court  subsequently  held:  "Present  intention  of 
occupancy  as  a  homestead,  with  present  action  to  carry  the 

1  The  case  above  criticised  scarcely  by,  established  a  wood-yard  on  the 

goes  farther  than  that  of  Reske  v.  contemplated  home  site,  inclosed  the 

Reske,  51  Mich.  541.     A  young  man,  ground,  built  a  barn,  dug  a  well  and 

unmarried,  bought  a  lot,  held  it  three  intended  to  erect  a  dwelling-house 

years    without    occupying    it    as    a  and  occupy  it. 

dwelling  place,   yet  was  given  the  ^  Avery  v.  Stephens,  48  Mich.  246 ; 

benefit  of  the  homestead  exemption,  Upman   v.   Second  Ward   Bank,  15 

because  he  had  married  meanwhile.  Wis.  449 ;  Kellj'  v.  Dill,  23  Minn.  435. 

moved  his  residence  to  a  house  near  ^  Bowles  v.  Hoard,  71  Mich,  l.'iO. 


EETKOACTION.  199 

intention  into  effect,  constitutes  a  homestead  in  law."  Intent 
alone  is  now  held  insufficient:  it  must  be  accompanied  by 
"  present  action."  One  would  think  the  action  must  be  that 
of  moving  upon  the  homestead  and  occupying  it  as  a  family 
residence;  but  the  court  will  be  satisiied  with  the  planting  of 
trees  and  nothing  more  for  the  first  seventeen  months,  fol- 
lowed then  by  the  making  of  a  contract  for  the  building  of  a 
dwelling. 

Such  "  present  intention,"  and  such  very  slight  "  present 
action  "  at  the  time  of  the  purchase,  gave  the  lot  the  exemp- 
tion character  eo  instanti,  in  the  estimation  of  the  court,  so 
that  the  mechanics,  whose  lien  would  have  been  good  on  ordi- 
nary property,  was  powerless  of  hold  on  this.  The  woman 
who  held  the  homestead  had  her  house  and  kept  her  money, 
under  the  benevolent  provision  of  the  law  and  its  very  liberal 
construction.^ 

§  9.  Retroaction. 

The  law  of  relation,  with  reference  to  the  exemption  right, 
is  not  created  or  even  recognized  in  any  homestead  statute. 
Until  the  conditions  of  ownership,  family  headship  and  occu- 
pancy (and  dedication  too  in  states  where  that  is  required), 
have  been  complied  with,  and  the  homestead  privileges  thus 
fully  acquired,  no  exemption  right  exists  in  embryo,  suscep- 
tible of  being  made  available  by  some  subsequent  act  that  shall 
relate  back  to  the  time  when  the  claimant  first  intended  to 
acquire  the  right,  so  as  to  defeat  intervening  obligations. 

There  are  decisions,  as  has  been  shown,  which  teach  that 
occupancy  relates  back  to  the  filing  of  the  declaration,  even 
to  the  purchase  of  the  property.  It  has  even  been  held  that 
an  unmarried  man,  having  no  family  whatever,  having  no 
dwelling-house  and  not  being  a  householder  in  any  sense,  may 
buy  a  vacant  lot  with  the  view  to  making  it  a  home  —  then 

1  Mills  V.  Hobbs,  76  Mich.  122,  12G.  house ;  and  there  is  nothing  in  the 
The  mechanics  had  no  notice  that  statute  requiring  the  owner  to  give 
the  building  was  claimed  as  a  home-  notice  to  the  contractor,  subcon- 
stead  while  doing  their  work.  The  tractor  or  material-men,  that  such 
court  said :  "  There  is  nothing  in  the  owner  claims  the  premises  as  a  home- 
record  to  show  that  McCartney  did  stead.  It  is  the  fact  of  its  being  a 
not  know  that  it  was  a  liomestead  homestead,  or  not,  that  determines 
when    he    contracted  to    build  the  the  right  of  lien." 


200  OCCUPANCY. 

get  married,  build  a  house,  occupy  it,  and  successively  claim 
exemption  from  the  date  of  purchase:  his  occupancy  relating 
back  to  his  marriage,  and  both  to  the  compliance  with  the 
single  condition  of  ownership.  Preparation  to  occupy,  and 
even  mere  intention  to  do  so,  have  been  held  to  bar  creditors, 
when  such  preparation  or  intent  was  followed  by  actual  oc- 
cupancy. In  other  words,  the  debtor  has  been  relieved  from 
his  obligations  contracted  between  the  time  of  first  occupying 
and  that  of  first  forming  the  design  of  doing  so,  in  his  own 
mind. 

The  criticism  of  the  cases  cited  in  this  and  the  foreiroins: 
section  turns  on  the  want  of  notice  to  the  public.  The  court 
rendering  them  may  have  considered  that  the  constitutional 
designation  of  a  day  when  the  exemption  provision  should 
become  operative  was  sufficient  notice  to  the  public,  so  that 
all  who  should  thereafter  give  credit  would  know  that  pay- 
ment might  be  defeated  b}^  subsequent  homestead  acquisition. 
The  decisions,  however,  seem  to  disregard  the  compensatory 
character  of  homestead ;  the  balancing  of  its  benefits  and  its 
burdens. 

It  has  been  held  that  when  a  debtor  buys  property  and 
makes  preparation  for  building  a  dwelling-house  upon  it, 
judgment  creditors  when  docketing  their  judgments  are  pre- 
sumed to  know  what  he  has  done  or  is  doing  on  the  land, 
"indicating  his  intention  of  making  it  his  homestead;  and 
any  further  notice  to  them  was  deemed  superfluous."  ^ 

So,  where  the  constitutional  exemption  is  of  "a  homestead 
.  .  .  occupied  as  a  residence  by  the  family  of  the  owner," 
it  was  judicially  held  that :  "  A  purchase  of  a  homestead  with 
a  view  to  occupancy,  followed  by  occupancy  within  a  reason- 
able time,  may  secure  ab  imtio  a  homestead  inviolability."  - 

Property  purchased  for  a  home,  and  occupied  within  a  sub- 
sequent period  which  the  court  characterized  as  "  reasonable," 
was  protected  from  forced  sale  by  the  application  of  the  law 
of  relation  —  from  occupancy  to  purchase  —  so  that  the  prop- 

1  Scofield  V.  Hopkins,  61  Wis.  Monroe  v.  May,  9  Kas.  466,  475 ;  Gil- 
371-2 ;  Kent  v.  Lasley,  48  Wis.  257 ;  worth  v.  Cody,  21  Kas.  702 ;  Const 
Manseau  v.  Mueller,  45  Wis.  436 ;  Kas.,  art  15,  §  9 ;  Gen.  Stat  (1889), 
Bennett  v.  Child,  19  Wis.  366.  §  235. 

2  Edwards  v.  Fry,  9  Kas.  417,  425 ; 


KETKO  ACTION.  201 

erty  was  treated  as  inviolable  from  the  date  of  its  acquisi- 
tion.^ 

When  the  statute  makes  no  provision  relative  to  intention, 
the  courts  take  note  of  circumstances  rather  than  of  interested 
professions.  The  claimant's  testimony  that  he  intended  to 
occupy  is  strongly  repelled  by  proof  of  the  facts  that  he  had 
contracted  to  sell  the  property  claimed  and  had  received  pay- 
ments on  his  contract.'-  But  when  preparations  for  living  in 
the  house,  even  from  the  date  of  purchase,  are  proven  to  tlie 
court,  they  strongly  support  the  claimant's  own  testimony 
that  he  intended  to  occupy  from  that  time.^ 

The  doctrine  of  the  state,  where  the  last-cited  decisions 
were  rendered,  seems  to  be  that  evidence  of  intention  must  be 
taken  with  caution ;  but  that  intention,  when  established,  is  a 
circumstance  to  be  received  as  favorable  to  constructive  occu- 
pancy. 

In  another  state,  though  the  statute  confined  the  exemption 
right  to  the  dwelling  "  in  which  the  claimant  resides,  and  its 
appurtenances  and  the  land  on  which  the  same  is  situated," 
and  fixed  a  limit  in  quantity  and  value,  yet  it  was  construed 
to  include  property  purchased  with  intent  to  reside  on  it, 
though  the  purchaser  did  not  reside  there.  And  the  property 
was  declared  exempt  from  the  day  of  purchase,  through  the 
intervening  time  from  the  date  of  the  contract  to  that  of  act- 
ual occupancy.* 

It  has  been  held  that  occupancy  relates  back  to  the  filing  of 
the  deed  declaratory  of  homestead  selection,  so  that  it  will  be 
in  time  to  save  the  homestead  from  execution  if  one  should 
move  upon  the  land  before  a  judgment  becomes  a  lien.  It 
is  held  that  the  occupancy  then  begun  is  retroactive  to  the 
time  of  filing,  so  that  the  land  is  deemed  a  homestead  from 
that  date.^  If  the  deed  was  filed  before  the  debt  was  con- 
tracted, the  creditor  is  debarred  his  remedy  by  the  subsequent 
action  of  the  debtor  in  taking  up  his  home  on  the  land." 

1  Monroe  v.  May,  9  Kas.  466.  v.  Cody,  21  Kas.  703 ;  Crawford  v. 

2Gapen  v.  Stephenson,  18  Kas.  140.  Richeson,  101  111.  357. 

"  Monroe  v.  May,  9  Kas.  466.  5  Finnegan  v.  Prindeville,  83   Mo. 

^Hanlon   v.  Pollard.    17   Neb.   368  517. 

(Neb.  Comp.  Stat.  (1889),  ch.  36,  §  1),  6  Qriswold  v.  Johnson,  22  Mo.  App. 

citing  Edwards  v.  Fry,  9  Kas.  417 ;  466.  See  Berry  v.  Ewing,  91  Mo.  395. 
Monroe  v.  May,  9  Kas.  466 ;  Gilwortli 


202  •  OCCUPANCY. 

On  the  other  hand,  in  a  state  where  declaration  is  author- 
ized but  not  made  indispensable,  it  was  held  that  occupancy 
after  the  creation  of  a  debt  did  not  reach  back  by  the  law  of 
relation  so  as  to  save  the  homestead  from  execution  for  that 
debt.i 

Intention  did  not  create  retroaction;  nor  preparation  to 
occupy ;  nor  subsequent  family  occupancy.^ 

§  10.  Ketroaction :  Building  Material. 

Where  the  homestead  law  is :  "A  homestead,  to  be  selected 
by  the  owner  thereof,  consisting,  when  not  included  in  any 
city,  or  village,  of  any  quantity  of  land  not  exceeding  forty 
acres,  used  for  agricultural  purposes,  and  when  included  in 
any  city  or  village,  of  any  quantity  of  land  not  exceeding  one- 
fourth  of  an  acre  and  the  dwelling-house  thereon  and  its  ap- 
purtenances, o'lcned  and  occupied  by  any  resident  of  this  state, 
shall  be  exempt  from  seizure  or  sale  on  execution,  from  the 
lien  of  every  judgment,  and  from  liability  in  any  form  for  the 
debts  of  such  owner,  except  laborers',  mechanics'  and  purchase- 
money  liens,  and  Mortgages  lawfull}^  executed,  and  taxes  law- 
fully assessed,  and  except  as  otherwise  specially  provided  in 
these  statutes ;  and  such  exemption  shall  not  be  impaired  by 
temporary  removal  with  the  intention  to  re-occupy  the  same 
as  a  homestead,  .  .  ."  ^  the  word  •'  occupied  "  is  construed 
to  be  not  confined  to  actual  occupancy,  but  to  include  intended 
OGGujpanc]).  It  is  said:  "The  occupancy  required  by  the  stat- 
ute does  not  mean  actual,  physical  occupation  by  the  owner 
personally,  for  the  same  section  requiring  it  declares  that  such 
exemption  shall  not  be  impaired  by  temporary  removal  with 
the  intention  to  re-occupy  the  same  as  a  homestead."  And 
then  an  argument  is  drawn  from  the  extension  of  the  exemp- 

1  Elston  V.  Robinson,  23  la.  208 ;  our  statute  there  is  an  unbroken 
Yost  V.  Devault,  3  la.  345.  series  of  decisions  that  occupancy, 

2  In  Elston  v.  Robinson,  23  la.  210,  the  use  of  the  house  by  the  family  as 
the  court  used  the  following  Ian-  a  homestead,  are  essential  requii'e- 
guage :  "  The  fact  that  the  owner  ments  to  impress  the  property  with 
commenced  a  building  upon  a  lot  be-  the  character  of  a  homestead.  A 
fore  the  right  of  the  creditor  at-  mere  intention  to  occupy  it,  though 
tached,  but  which,  by  no  other  act  subsequently  carried  out,  is  not  suf- 
of  the  owner,  had  been   impressed  ficient." 

with  the  homestead  character,  would        3  Annotated  Stat.  Wis.,  §  2983. 
not  make  the  same  exempt.     Under 


keteoaction:  building  matekial.  203 

tion  to  the  proceeds  of  sale  held  for  investment  in  a  new 
home.  Then  it  is  added:  "The  honafide  intention  of  acquir- 
ing the  premises  for  a  homestead,  "without  defrauding  any  one, 
evidenced  by  overt  acts  in  fitting  them  to  become  such,  fol- 
lowed by  actual  occupancy  in  a  reasonable  time  [in  this  case 
the  exemptionists  had  not  actually  occupied  at  all],  must  be 
held  to  give  to  the  premises  answering  the  description  pre- 
scribed in  the  statute  the  character  of  a  homestead,  and  the 
homestead  exemption  thus  secured  covers  not  only  the  land, 
but  such  materials  so  used  thereon,  and  relates  back  to  the 
time  of  purchase  with  such  intent  to  make  the  premises  a 
homestead."  ^ 

To  quote  further  from  the  court:  "  It  would  seem  that  ma- 
terials actually  upon  the  ground,  and  designed  to  be  used  in 
the  construction  of  a  dwelling-house,  well,  or  other  essentials 
of  a  homestead,  with  the  intention  of  the  owner  to  occupy  the 
same,  with  his  family,  as  such,  would  also  be  exempt."  And 
this  seeming  was  inferred  from  prior  decisions  (which  were 
approved),  holding  that  "  lath,  shingles  and  lumber,  obtained 
by  the  debtor  for  the  purpose  of  repairing  the  dwelling-house 
occupied  by  him  as  a  homestead,  and  actually  deposited  upon 
land  included  in  the  homestead,  were  exempt.^ 

That  is  to  say,  without  any  statutory  warrant  expressed,  as 
soon  as  building  material,  for  a  family  dwelling  to  be,  is  lodged 
upon  ground  set  apart  as  a  homestead,  or  intended  to  be  set 
apart,  it  is  impliedly  exempt,  being  devoted  to  a  use  which 
renders  it  a  thing  set  apart  under  statute,  which  no  creditor 
may  touch. 

It  seems  very  plain  that  the  statute  means  that  the  prop- 
erty shall  be  "  occupied  "  at  the  time  exemption  attaches  — 
not  at  a  future  time ;  that  occupancy  means  habitation  by  the 
family  —  not  mere  preparation  to  inhabit.  There  is  no  qual- 
ification of  the  w^ord  "  occupied,"  by  the  legislator,  in  that 
part  of  the  statute  which  lays  down  how  homestead  is  to  be 
acquired;  but  there  is  the  express  further  provision  that  the 
exemption,  when  once  acquired,  "shall  not  be  impaired  by 
temporary  removal  with  the  intention  to  Te-occupy: "  from 
which  we  may  logically  infer  that  he  meant  that  temporary 

iScofieldv.  Hopkins,  61  Wis.  370.  2Krueger   v.  Pierce,  37  Wis.  269; 

Zimmer  v.  Pauley,  51  Wis.  285. 


204:  OCCUPANCY. 

removal  is  a  cessation  of  occupancy  which  would  forfeit  the 
exemption  but  for  this  further  provision.  One  cannot  re- 
occupy  without  having  first  occupied  and  ceased  to  occupy. 
Intention  is  limited  by  the  statute  to  re-occupancy.  It  should 
have  been  coupled  with  occupancy  as  one  of  the  conditions 
of  acquiring  a  homestead,  if  the  legislator  had  meant  to  make 
intention  and  preparation  to  occupy  equivalent  to  occupancy. 
If  the  expression  of  such  means  of  acquiring  was  not  neces- 
sary, why  was  it  necessary  in  that  part  of  the  statute  which 
provides  for  the  means  of  retaining  the  exemption  right? 
Why  should  "  intention  to  re-occupy  "  be  expressed,  and  "  in- 
tention to  occupy  "  be  omitted  ? 

The  argument  drawn  from  the  statutory  provision,  respect- 
ing temporary  removal  with  intent  to  re-occupy,  does  not  sus- 
tain the  proposition  that  "  the  occupancy,  required  by  the 
statute  [in  acquiring  exemption  in  the  first  instance],  does  not 
mean  actual,  physical  occupation  by  the  owner  personally." 

And  the  argument  from  the  further  provision  of  the  stat- 
ute exempting  the  proceeds  of  a  homestead  sale  while  held 
'''  with  the  intention  to  procure  another  homestead  therewith, 
for  a  period  not  exceeding  two  years,"  seems  equally  falla- 
cious. Why  should  the  legislator  expressly  make  the  bene- 
ficiarj^'s  intention  a  condition  here,  and  significantly  avoid  it 
in  the  part  of  the  statute  declaring  how  exemption  shall  be 
acquired?  If  the  expression  was  necessary  where  used,  it 
was  necessary  where  it  is  omitted,  if  intention  and  prepara- 
tion to  make  a  homestead  were  meant  to  be  equivalent  to  actual 
occupanc}''. 

The  reasons  on  which  the  decision  is  based  do  not  seem  to 
be  such  as  should  commend  themselves  to  the  bench  and  bar 
of  other  states  having  statutes  which  require  occupancy  as  a 
condition  to  the  acquisition  of  exemption  of  homesteads, 
thouo'li  it  is  law  in  the  state  where  it  was  rendered,  where 
it  had  been  foreshadowed,  and  in  many  respects  anticipated 
by  prior  deliverances.^ 

§  11.  Inherited  Homesteads. 

The  rule  requiring  occupancy  as  a  condition  to  the  enjoy- 
ment of  the  exemption  right  finds  no  exception  in  the  case  of 

1  Scofield  V.  Hopkins,  61  Wis.  370. 


LEGAL    POSSESSION    AS    OCCUPANCY.  205 

inherited  property  which  has  never  been  the  home  of  the 
claimant.^  Distinction,  however,  has  been  made  between  in- 
heritance and  purchase,  favoring  the  former,  wnth  respect  to 
the  homestead  right.^  One  who  lived  on  a  part  of  his  father's 
land,  and  who  inherited  it  on  his  father's  death,  w^as  adjudged 
entitled  to  hold  it  exempt  from  his  own  debts  previously  con- 
tracted, on  the  ground  that  his  creditors  had  not  trusted  him 
in  consideration  of  his  ownership  of  the  land.^ 

In  exposition  of  a  statute  which  provided  that  homestead 
exemption  "  shall  not  apply  to  sales  under  execution,  attach- 
ment or  judgment,  at  the  suit  of  creditors,  if  the  debt  or 
liability  existed  prior  to  the  purchase  of  the  land  or  the  erec- 
tion of  improvements  thereon,"*  the  courts  construed  the 
word  "  purchase  "  not  to  mean  acquisition,  but  to  be  confined 
to  its  sense  as  distinguished  from  taking  by  descent.  The  con- 
clusion was  that  though  the  debtor  may  have  contracted  debts 
before  inheriting  property  which  he  uses  as  a  homestead,  his 
creditors  are  debarred ;  but  that,  if  he  had  purchased  the  prop- 
erty after  contracting  the  debts,  and  then  used  it  as  a  home- 
stead, they  could  have  subjected  the  property  to  the  payment.' 

What  did  the  legislator  design?  That  property  acquired 
after  the  creation  of  indebtedness,  in  any  way,  should  be  liable 
to  forced  sale  after  judgment,  seems  the  manifest  meaning.  The 
limitation  of  the  word  "purchase"  to  its  ordinary  meaning, 
and  the  disregard  of  occupancy,  under  some  sort  of  title,  as  a 
condition  to  the  enjoyment  of  the  homestead  right,  would  open 
the  door  to  all  debt-contracting  young  men  for  entering  into 
their  subsequent  inheritances,  with  their  families,  w^ithout 
having  their  patrimony  liable  for  their  antecedent  debts.  Such 
a  result  was  hardly  contemplated  by  the  legislator,  and  seems 
against  the  spirit  of  the  statute. 

§  12.  Legal  Possession  as  Occupancy. 

"  A  homestead,  in  the  possession  cf  each  head  of  a  family, 
and  the  improvements  thereon,  to  the  value  in  all  of  one 
thousand  dollars,  shall  be  exempt  from  sale,  under  legal  pro- 
cess, during  the  life  of  such  head  of  a  family,  to  inure  to  the 

1  Creager  V.  Creager,  87  Ky.  449.  4  Gen'l  Stat.  Ky.,    ch.  38,  art.   13, 

2  Jewell  V.  Clark's  Ex'rs,  78  Ky.  398.    §  IG. 

3  lb.  6  Jewell  V.  Clark's  Ex'rs,  78  Ky.  398. 


20  G  OCCUPANCY. 

benefit  of  the  widow,  and  shall  be  exempt  during  the  minority 
of  their  children  occupying  the  same  —  nor  shall  said  property 
be  alienated  without  the  joint  consent  of  husband  and  wife, 
when  that  relation  exists.  This  exemption  shall  not  operate 
against  public  taxes,  nor  debts  contracted  for  the  purchase- 
money  of  such  homestead,  or  improvements  thereon."  » 

An  illustration  of  "enlarged  Uberality"  of  construction  fol- 
lows in  allowing  homestead  exemption,  under  the  constitution 
and  laws  as  above  given,  to  one  who  did  not  live  upon  the 
property  held  exempt  and  never  had  lived  upon  it,  as  his 
home.  He  owned  a  lot,  and  was  in  legal  possession,  and  the 
court  held  that  sufficient  compliance  with  the  constitutional 
requirement;  that  is,  that  land  "in  the  possession  of  each 
head  of  a  family  "  is  equivalent  to  "  a  homestead  in  the  posses- 
sion of  each  head  of  a  family."  Mention  is  made  that  the 
owner  tilled  the  lot  as  a  garden;  that  he  was  poor —  had  no 
other  land  —  and  it  was  said,  in  comparison  of  two  statutes : 
"It  certainly  could  not  have  been  intended,  under  the  latter 
law,  to  ostracise  the  poor  man  from  its  benefits  simply  be- 
cause the  land  upon  which  he  earns  his  bread  had  no  house 
upon  it.  If  .  .  .  he  is  compelled  by  his  poverty  to  occupy 
rented  premises,  then,  under  this  law,  the  usitfruct  of  the  soil 
by  which  his  family  is  maintained  must  be  held  to  fix  the 
homestead  intended  to  be  protected.  ...  We  hold  that 
the  possession  and  use  of  the  land,  whether  it  be  improved 
and  resided  upon  or  not,  or  whether,  in  the  language  of  the 
ancient  law,  it  be  a  '  messuage  or  a  croft,'  is  none  the  less  a 
homestead  in  the  sense  of  the  statute,  and  is  protected  under 

the  law."  2  .,  .  r. 

Legal  possession  of  property  used  for  family  support  has 

been  held  sufficient.^ 

iTenn    Const.  1870,  art.  11,  §  11;  language  in  Code,  §  2114a,  constraed 

Acts  1870-1,  ch.  80,  p.  98,  embodying  directly  opposite  in  Wade  v.  Wade, 

substantially  that  section  of  the  con-  9  Bax.   613.    This  last  case    ^s  ap- 

stitution  proved  in  Collins  v.  Boyett,  87  Tenn. 

''2  Dickinson  v.   Mayer,    11    Heisk.  334;  but.  in  the  matter  of  enlarged 

521     The  language  of    the  "latter  liberal  construction,  D.  v.  M.  is  ap- 

statute,"     thus    construed,    is:     "A  proved  in  87  Tenn.  281. 

homestead  in  the  possession  of  each  3  it    was    held    not   necessary   m 

head   of   a   family."    Act   Jan.  31,  Texas  for  the  family  of  a  decedent 

1871,  Acts  of  1870-1,  p.  98.    Same  homestead    holder    to    actually   oc- 


LEGAL    POSSESSION    AS    OCCUPANCY.  207 

Mere  occupation,  without  title  or  color  of  title,  legal  or 
equitable,  from  "  the  sovereignty  of  the  state,"  is  not  sufficient 
to  support  homestead  donation,  under  a  provision  as  follows: 
"  No  person  shall  settle  upon  or  occu])y,  nor  shall  any  survey 
be  made  or  patented  .  .  .  upon  any  land  titled  or  equi- 
tably owned  under  color  of  title  from  the  sovereignty  of  the 
state,  evidence  of  the  appropriation  of  which  is  on  the  county 
records  or  the  general  land  office,  or  where  the  appro)n-ia- 
tion  is  evidenced  by  the  occupation  of  the  owner  or  of  some 
person  holding  for  him."  ^ 

cupy  the  land.  If  used  for  their  son,  57  Tex.  453.  Const  of  Texas, 
support,  and  no  other  homestead  is    art.  16,  §  52. 

acquired,  it  remains  exempt.  Fore-  i  Texas  Rev.  Stat,  §;§  3936,  3951; 
man  v.  Meroney,  63  Tex.  723,  dis-  Paston  v.  Blanks,  77  Tex.  330.  Pos- 
tinguished  from  Pressley  v.  Robin-    sessory    right    is    always    essential. 

Caldewood  v.  Tevis,  37  CaL  367. 


CHAPTER  VII. 


LIMITATIONS  OF  THE  VALUE  AND  QUANTITY  OF  REALTY. 


§  1.  Value  and  Quantity. 

2.  Monetary  Limit  Only. 

3.  Increase  of  Value  After  Acquisi- 

tion. 

4.  Quantitative  Limit  Only. 


§  5.  Indivisible  and  Excessive  Prop- 
erty. 

6.  Extension  of  Corporate  Bounds. 

7.  What  Law  Governs  Limits. 

8.  Exemption  of  Real  and  Personal 

Property. 


§  1.  Yaliie  and  Quantity. 

In  granting  home  protection,  the  state  does  not  treat  every 
town  residence  or  country  farm,  owned  and  occupied  by  the 
head  of  a  family,  as  a  homestead  in  the  legal  acceptation  of  the 
word.  It  designates  the  quantity  and  the  value  within  which 
the  person  entitled  to  the  protection  may  have  a  homestead 
in  the  legal  sense  of  the  terra.  It  does  not  invariablj'^  limit 
him  in  both  quantity  and  value,  but  such  double  restriction  is 
required  by  several  of  the  statutes. 

Some  of  the  states  have  monetary  restrictions  but  not  quan- 
titative, while  others  have  the  latter  without  the  former; 
some  require  both  limitations  when  homesteads  are  first  dedi- 
cated but  do  not  subsequently  confine  them  to  the  pecuniary 
restriction  when  they  have  increased  in  value.  The  equality 
of  the  urban  and  rural  homestead  in  monetary  estimate  is 
not  invariably  required,  even  in  the  declaration  and  dedication 
of  the  exempt  realty.  The  quantitative  limit  is  not  inflexible 
in  every  case,  but  some  statutes  make  it  elastic  so  as  to  meas- 
ure with  the  appraisement;  thus  most  of  those  which  pre- 
scribe the  two-fold  gauge  are  construed  to  imply  the  shrinkage 
of  quantity  as  the  price  enhances. 

First  will  be  considered  the  double  limitations  by  which  the 
town  and  country  homesteads  are  required  to  be  equal  in 
value,  though  not  in  extent ;  by  which  any  person  entitled  to 
choose  may  take  either  yet  have  the  full  exemption. 

There  is  great  latitude  in  the  allowances,  comparing  the 
limit  of  one  state  to  that  of  another,  which  will  appear  from 


VALUK    AND    QUANTITY.  2U9 

a  few  illustrations.  Eighty  acres  in  the  country  or  a  lot  in 
town,  neither  exceeding  two  thousand  dollars  in  value  includ- 
ing improvements ;  ^  forty  acres  in  the  country  or  a  town  lot 
(or  ])arts  of  lots  equal  to  one),  neither  exceeding  fifteen  hun- 
dred dollars  in  value  including  improvements;^  one  hundred 
and  sixty  acres  in  the  country  or  a  town  residence  not  limited 
in  quantity,  neither  exceeding  two  thousand  dollars  in  value 
including  improvements ; '  one  hundred  and  sixty  acres  in  the 
country  or  two  contiguous  lots  in  town,  neither  exceeding  two 
thousand  dollars  in  value  including  improvements :  *  these  few 
exami)les  are  the  best  that  can  be  found  of  double  limitations 
with  equality  of  exemption  preserved  between  rural  and  urban 
homesteads.  Illustrations  of  both  restrictions  will  follow,  in 
their  place,  showing  material  variances  from  those  given  above. 

Where  the  double  limitation  is  prescribed,  it  is  impracticable 
to  continuously  restrain  the  homestead  to  both.  The  effect  is 
to  decrease  the  quantity  as  the  value  is  increased.  "When  the 
homestead  is  selected,  declared  or  set  out,  it  may  be  precisely 
of  the  allowable  quantity  and  estimate ;  but  land  is  not  sta- 
tionary in  price,  and  its  rise  in  the  market  or  the  improve- 
ments put  upon  it  after  dedication,  may  render  it  of  so  much 
greater  worth  than  it  had  at  first  that  the  quantity  must  be 
reduced  to  keep  it  within  the  law  of  exemption.  There  are 
states  which  do  not  hold  subsequent  advances,  in  value  as  af- 
fecting the  original  allowance  of  acreage,  but  the  topic  now 
is  the  rise  of  value  in  those  states  which  do  so  hold.  In  them, 
the  excess  of  value  is  liable  to  be  reached  by  creditors  though 
the  quantitative  limit  be  not  in  excess.  In  other  words,  only 
so  much  of  the  original  quantity  as  is  within  the  monetary 
limitation  remains  exempt. 

Increase  in  value  operates  as  a  reduction  of  the  area,  ren- 
dering appraisement  and  partition  necessary  in  case  of  a  judg- 
ment creating  a  lien  on  the  excess,  or  one  vindicating  a  pre- 

1  Const.  Ala.,  art  10,  sec.  3.     A  de-  2  Const  Mich.,  art  16,  §§  1-4 ;  How- 

clarant    claimed  eighty-eight  acres  ell's  Stat,  §§  7721-9. 

worth  no  more  than  $2,000 :  held,  that  ^  Acts  of  Miss.,  1882,  p.  140,  amend- 

he  should  have  declared  which  eighty  ing  the  Rev.  Code  of  1880,  §§  1248-9. 

of  the  eighty-eight  constituted  his  See  Miss.   Code  of  1892,  exempting 

homestead.      Clark    v.    Spencer,   75  $3,000,  if  the  homestead  is  recorded. 

Ala.  49.  ■«Comp.   Stat   Neb.   (1889).   ch.   36, 

§§  1-16. 
14 


210  LIMITATIONS    OF    VALUE    AND    QUANTITY. 

existing  lien.  When  the  reduction  has  readied  the  point 
where  divisibility  of  the  })roperty  is  impracticable,  the  house- 
holder ceases  to  have  a  homestead,  in  kind,  while  he  retains 
his  exemption  right  to  the  amount  of  the  monetary  limit  and 
may  claim  from  the  proceeds  of  a  forced  sale.' 

A  homestead,  like  any  other  real  estate,  is  likely  to  fluctu- 
ate in  price.^  The  law  of  supply  and  demand  affects  it.  If  it 
is  partially  taken  out  of  commerce  by  the  restraint  upon  alien- 
ation which  prevails  in  several  states,  it  is  still  affected  by  the 
rise  or  fall  of  neighboring  real  estate  not  thus  restrained. 
Besides,  every  improvement  put  upon  the  land  or  buildings 
enhances  the  value.  These  and  other  causes  frequently  render 
a  lot  or  farm  of  the  prescribed  dimensions  worth  far  more  than 
the  prescribed  price,  when  it  is  appraised  a  few  years  after 
dedication,  at  the  instance  of  judgment  creditors  aiming  to 
reach  the  excess. 

§  2.  Monetary  Limit  Only. 

Many  states  fix  no  dimensions  to  a  homestead  either  urban 
or  rural,  but  do  not  exempt  it  beyond  a  stated  sum.  What- 
ever the  quantity  of  realty  held  by  the  beneficiary,  he  can- 
not claim  the  protection  of  the  state  against  his  creditors  so 
far  as  concerns  any  surplus  of  value  beyond  the  fixed  limit. 

The  favorite  ultimatum  of  exemption  seems  to  be  one  thou- 
sand dollars.  Several  states  have  prescribed  that  sum  as  the 
monetary  limit  within  which  the  home  will  be  protected  from 
forced  sale.^  Some  prescribe  less,  some  more,  varying  from 
five   hundred  *  fro  five  thousand  dollars.*     Those  providing 

1  Vermont  Bank  v.  Elliott,  53  Mich.  (Throop),  §§  1397-9 ;  West  Virginia 
256 ;    Farley  v.  Whitehead,  63  Ala.     Const.,  art.  VI,  §  48. 

295  ;  Giddens  v.  Williamson,  65  Ala.  *  The  following  instances  of  $500 

439.  limit:  New  Hampshire  Gen.   Laws, 

2  Beckner  V.  Rule,  91  Mo.  62.  ch.    138,   pp.   330-2;    Vermont  Gen. 

3  The   following,   to  illustrate  the  Stat.,  ch.  68. 

$1,000    limit:    Illinois    Annot   Stat.,  5 The  following    are  examples  of 

I).  1097  et  Heq.:  Giouque's  Ohio  Rev.  $5,000  limit:  California  Code  &  Stat. 

Stat.  §  5438;    Kentucky   Gen.  Stat.  '(Deering's),   §§  1237    et  seq.;    Idaho 

(1888),    pp.    574-8;    North    Carolina  Stats.   (1887),   §  3058;  Nevada  Gen. 

Const,  art  X,  sees.  2.3,4,  8;  South  Stat,   §  539.     (The  $5,000    limit   in 

Carolina  Const,  art  I,  sec.  20,  art  II,  Texas,  is  not  the  sole  restriction  as 

sec.  32 ;   Tennessee  Const,   art.    XI,  in  the  above  three  states.) 
§  11 ;  New  York  An.  Code  Civ.  Proc. 


MONETAUY     LIMIT    ONI.V. 


211 


money  exemptions  from  the  j)rocee{l.s  of  realty  and  personalty 
are  not  considered  in  this  section.  Onl}'  homesteads  are  now 
in  hand,  and  only  those  which  are  without  territorial  restric- 
tion.' 

In  the  absence  of  any  quantitative  restriction,  the  home- 
stead is  measured  by  value  only.^  Eleven  hundred  acres  of 
land,  not  worth  more  than  the  uUiinatiun,  five  thousand  dol- 
lars, were  held  exem])t  as  a  homestead.^  The  tract  was  mainly 
used  as  a  ])asture,  though  lived  upon  by  the  family  of  the 
owner;  and  it  was  considered  as  "occupied"  in  the  sense  re- 
quired by  statute  which  is  strict  in  its  provisions  relative  to 
homestead  use.^ 

The  exempt  realty,  if  not  exceeding  the  prescribed  mone- 
tary value  where  that  is  the  only  limit,  may  consist  of  more 
than  one  town  lot,  if  they  are  contiguous  and  constitute  to- 
gether but  one  family  home  duly  occupied  as  such.^  And  by 
parity  of  reasoning,  two  contiguous  tracts  of  land  might  con- 
stitute one  home  farm  worth  no  more  than  five  thousand  dol- 
lars. 

An  estimate  of  the  actual  cash  value  must  appear  in  the 
declaration  of  homestead."      It  is  the  only  limitation,  and 


1  In  addition  to  the  examples  above 
given,  there  are  others  which  belong 
to  the  class  now  being  treated,  re- 
stricted in  other  amounts ;  as,  Louis- 
iana, at  $2,000.  Const  La.,  §g  219, 
220.  By  the  constitution  of  Georgia 
of  1868,  the  lunit  was  $2,000;  by 
that  of  1877,  $1,000.  See  Civ.  Code, 
i?§  2055,  5135.  Under  the  former,  real 
and  personal  exemption  amounted 
t  J  $3,000 ;  under  the  latter,  to  $1,600. 
In  Virginia,  there  is  exemption  of 
real  or  personal  property,  or  of  both, 
selected  by  the  debtor,  to  the  amount 
of  $2,000,  in  addition  to  the  articles 
exempt  from  levy  or  distress  for  rent 
Const  Va.,  art  XI,  ^§  1,  3,  5.  A 
town  lot  or  a  farm,  wortli  not  more 
than  $800,  is  exempt  in  Massachu- 
setts. Mercier  v.  Chace,  11  Allen, 
194.  The  land  must  be  owned  by 
the  householder  —  not  held  in  com- 
mon with  others.     Holmes  v.  Win- 


chester, 138  Mass.  542,  in  ex.  of  Stat 
of  1855,  ch.  238. 

2  Estate  of  Delaney,  37  Cal.  176; 
Mann  v.  Rogers,  35  Cal.  319 ;  Gregg 
V.  Bostwick,  33  Cal.  220 ;  McDonald 
V.  Badger,  23  Cal.  393, 

3  First  N.  Bank  v,  Guerra,  61  CaL 
109;  Ornbaum  v.  His  Creditors,  61 
Cal.  455. 

^Prescott  V.  Prescott  45  Cal.  58. 
And  actual  occupancy  has  always 
been  one  of  the  tests.  Cook  v.  Mc- 
Christian,  4  Cal.  24;  Reynolds  v. 
Pixley,  6  Cal.  165 ;  Riley  v.  Pehl,  23 
Cal.  74;  Ackley  v.  Chamberlain,  16 
Cal.  181 ;  Elmore  v.  Elmore,  10  Cal. 
220;  Rix  v.  McHenry,  7  Cal.  91; 
Benedict  v.  Buuuell,  7  Cal.  2i6 ;  Gary 
V.  Tice,  6  Cal.  026. 

5  Euglebrecht  v.  Shade,  47  Cal.  627 ; 
McDonald  v.  Badger,  23  Cal.  394. 

«Civ.  Code  Cal.,  g  1263;  Jones  v. 
Waddy,  66  Cal.  457 ;  Read  v.  Rahm, 
65  Cal.  343. 


212  LIMITATIONS    OF    VALUE    AND    QUANTITV. 

therefore  an  indefinite  allegation  that  the  property  selected 
is  worth  "  five  thousand  dollars  and  over,"  was  held  not  ad- 
missible.' But  when  the  premises  were  estimated  at  eight 
thousand,  the  declaration  was  received,  and  tlie  court  said 
that  it  was  not  invalid  because  the  value  of  the  property  was 
in  excess  of  the  limit  fixed  for  a  homestead.- 

The  Avhole  premises  could  not  be  the  declarant's  homestead, 
in  the  legal  meaning  of  the  code,  and  the  declaration  upon 
the  whole,  without  partition  cutting  off  three  thousand  dol- 
lars' worth  as  non-exempt,  would  seem  to  have  been  an  im- 
proper course.  In  case  of  judgment  and  execution,  partition 
would  be  necessary,  since  the  surplus  is  liable  to  creditors.' 

A  substantial  declaration  of  the  value,  without  giving  de- 
tails, is  sufiicient.''  If  such  declaration  is  erroneous ;  that  is, 
if  it  is  an  under-estimate,  creditors  may  have  it  corrected  by 
appraisement;  or  they  may  have  the  whole  property  sold 
when  it  is  not  susceptible  of  partition,  and  execute  their  judg- 
ment upon  the  excess.'^ 

The  monetary  restriction  usually  has  reference  only  to  the 
homestead,  but  there  are  decisions  favoring  the  exemption  of 
other  property  with  it  to  make  up  the  maximum  of  exemp- 
tion.® 

Where  the  only  criterion  is  value,  a  homestead  not  exceed- 
ing the  raaximum  has  been  held  good  without  any  formal 
declaration  or  designation.''     But  it  must  be  regularly  desig- 

1  Ames  V.  Eldred,  55  Cal.  136.  ceeding  in  value  the  sum  of  $5,000," 

2  Ham  V.  Santa  Rosa  Bank,  62  Cal.  ...  it  was  held  that  business  stores, 
125 ;  S.  C,  45  Am.  Rep.  654.  separated  from  each  other,  may  be 

3  Tiernan  v.  His  Creditors,  62  Cal.  included  in  the  homestead,  and  that 
286.  the  law  does  not  limit  the  uses  to 

<  Read  v.  Rahm,  65  Cal.  343.  which  the  property  may  be  put  in  ad- 

5  Mann  v.  Rogers,  35  Cal.  319 ;  dition  to  its  use  as  a  home ;  that  in 
Gregg  V.  Bostwick,  33  Cal.  222 ;  Cohen  addition  to  the  dwelling,  there  may 
V.  Davis,  20  Cal.  187 ;  Holden  v.  Pin-  be  other  structures  for  other  pur- 
ney,  6  Cal.  236 ;  Taylor  v.  Hargous,  4  poses.  Smith  v.  Stewart,  13  Nev.  65 ; 
Cal.  272 ;  Cook  v.  McChristian,  4  Cal.  1  Comp.  Laws,  Nev.  568 ;  Clark  v. 
24.  Shannon,    1   Nev.   568;  Goldman   v. 

6  In  Nevada,  where  is  exempted  by  Clark,  1  Nev.  516;  Ackley  v.  Cham- 
statute,   "The  homestead,  consisting  berlain,  16  Cal.  181;  Kelly  v.  Baker, 
of  a  quantity  of  land  [not  limited],  10  Minn.  124;  Stats,  of  Minn.  498. 
together    with    the    dwelling-house        Tinkerton  v.  Tumlin,  22  Ga.  165 ; 
thereon  and  its  appurtenances,  not  ex-  Bearing  v.  Thomas,  25  Ga,  224, 


MONETARV    LIMIT    ONLY.  213 

nated  if  the  premises  occupied  as  a  home  do  exceed  the  fixed 
vakie  exempt;  that  is,  the  portion  containing  the  home  must 
be  separated  from  so  much  as  enhances  the  estimate  above  the 
prescribed  limit."  If  this  cannot  be  done,  the  creditor  may 
cause  the  whole  to  be  sold,  but  the  exempt  amount  must  be 
reserved  from  the  proceeds  and  given  to  the  debtor.^  If  a 
selection  by  the  owner  exceed  the  legal  limit,  the  court  may 
order  the  sale  of  the  property  and  the  investment  of  the  pro- 
ceeds in  ft  new  home  of  the  required  estimation,  in  one  state. 
Or,  if  the  property,  claimed  as  his  homestead  by  the  debtor- 
owner,  consists  of  scattered  parcels,  the  court  may  order  that 
they  be  sold  and  invested  in  property  suited  for  a  home.^  The 
excess,  above  the  monetary  limit,  is  liable.'* 

Where  the  law  exempts  one  lot  regardless  of  value,  and  re- 
quires it  to  be  occupied  as  a  family  residence  (though  not  inhibit- 
ing other  uses  in  connection  with  the  home  purpose),''  what 
are  we  to  understand  by  the  word  "lot?"  Is  it  necessarily  a 
town  or  a  cit}^  lot  according  to  the  municipal  plan  or  plat? 
Or  is  it  such  subdivision  as  the  platting  of  the  land  containing 
the  homestead  sets  forth  as  a  "  lot?  "  It  has  been  held  that 
in  a  town  of  over  five  thousand  inhabitants,  the  size  of  the  lot 
is  governed  by  the  map  of  the  survey  of  the  land  from  which 
the  homestead  is  claimed.^ 

1  Davenport  v.  Alston,  14  Ga.  271.  stead,  are  exempt,  to  the  extent  of 

2  Bearing  v.  Thomas,  supra.  $1,000,  from  sale  on  execution.   N.  Y. 

3  Harris  v.  Colquit,  44  Ga.  663 ;  Code,  §  1397.  The  exemption  ceases 
Blivens  v.  Johnson,  40  Ga.  297 ;  on  non-occupation.  §  1400.  The  lien 
Georgia  Code,  §  5135.  of  a  judgment  attaches  to  the  sur- 

4  Young  V.  Morgan,  89  111.  199;  plus  above  $1,000.  §1403.  A  mort- 
Moriarty  v.  Gait,  112  111.  373;  Raber  gage  on  exempt  property  is  ineffect- 
V.  Guud,  110  111.  581;  Eldridge  v.  ual  until  the  exemption  has  been 
Pierce.  90  111.  481 ;  Browning  v.  Har-  canceled.  §  1404.  How  it  may  be 
ris,  99  111.  462.  In  Parrott  v.  Kumpf,  canceled.  §  1403.  Not  ineflfectual  as 
102  111.  423,  held  that  if  the  home-  to  surplus.  Peck  v.  Ormsby,  55  Hun. 
stead  is  not  properly  released  in  the  265.  In  Georgia,  if  the  debtor's  right 
mortgage,  the  purchaser  takes  the  of  exemption  in  land  is  less  than  the 
excess  over  $1,000  unless  the  home-  value  of  the  land,  the  difference  is 
stead  has  not  been  set  off,  so  that  he  liable  for  his  debt.  Vining  v.  OflB- 
gets  no  right  of  possession  by  his  cers,  82  Ga.  222. 

purchase.     Only  excess  of  value  lia-  '' Jacoby  v.  Distilling  Co.,  41  Minn, 

ble  on  collector's  bond.      Crawfoi'd  227,  230;  XJmland  v.  Holcombe,  26 

V.   Richeson,   101   111.   351.     In   New  Minn.  286;  Kelly  v.  Baker,  10  Minn. 

York,  a  lot  and  buildings,  occupied  124. 

as  a  residence,  designated  as  a  home-  ^  Lundberg  v.  Sharvy,  46  Minn.  350 ; 


2U 


LIMITATIONS    OF    VALUE    AND    QUANTITY. 


The  statutory  limitation  of  a  homestead  to  a  "  lot,"  however, 
is  not  always  governed  by  the  map  of  thd  survey.  The  mean- 
ing of  the  word  is  to  be  sought  from  the  legislative  intent, 
from  the  context,  etc.,  as  in  the  interpretation  of  other  words.' 


49  N.  W.  60.  Gilfillan,  C.  J. :  "  Accord- 
ing to  the  complaint  the  plaintiff  is 
the  owner  of  two  adjoining  lots  in 
Portland  division  of  Duluth,  accord- 
ing to  the  recorded  plat  thereof,  on 
which  stands,  partly  on  each  lot,  the 
dwelling-house  occupied  as  their  res- 
idence by  himself  and  family.  As 
we  understand  the  complaint,  the 
lots  in  that  division,  including  those 
of  the  plaintiff,  are  twenty-five  feet 
wide  by  one  hundred  and  forty  feet 
deep,  while  in  the  remainder  of  the 
platted  portion  of  the  city  of  Duluth 
the  ordinary  size  of  lots  is  fifty  feet 
by  one  hundred  and  forty  feet.  The 
defendant,  the  bank,  having  a  judg- 
ment against  him,  has  caused  exe- 
cution to  issue  and  to  be  levied  upon 
the  two  lots.  The  action  is  to  set 
aside  the  levy,  the  plaintiff  claiming 
that  both  lots  are  exempt  because  of 
his  homestead.  The  statute  (Gen.  St. 
1878,  ch.  68,  §  1)  exempts  '  a  quantity 
of  land  not  exceeding  in  amount  one 
lot,  if  within  the  laid-out  or  platted 
portion  of  any  incorporated  town, 
city,  or  village  having  over  five  thou- 
sand inhabitants.'  In  Wilson  v. 
Proctor,  28  Minn.  13 ;  8  N.  W.  Rep. 
880,  the  court  had  occasion  to  define 
the  word  *  lot '  as  used  in  this  statute, 
and  it  was  held  not  to  be  synonymous 
with  '  tract '  or  '  parcel,'  but  to  be 
used  in  the  sense  of  a  city,  town,  or 
village  lot,  according  to  the  survey 
and  plat  of  the  city,  town  or  village 
in  which  the  property  is  situated.  It 
was  admitted  that  the  construction 
was  not  free  from  difficulty,  but  it  is 
the  only  one  indicated  by  the  terms 
of  the  act,  and  any  other  wOuld  lead 
to  greater  difficulty.  There  would 
be  no  trouble  in  applying  the  term 


as  thus  construed  if  city,  town,  and 
village  lots  were  uniform  in  size,  so 
that  the  word  would  express  a  fixed 
standard  of  quantity.  But,  as  every 
one  knows,  they  vary  not  only  as  be- 
tween different  cities,  towns,  and  vil- 
lages, but  as  between  different  parts 
of  or  additions  to  the  same  city,  town, 
or  village.  Thus,  in  some  additions 
to  the  city  of  St.  Paul,  lots  are  sixty 
by  one  hundred  and  fifty  feet,  in 
others  fifty  by  one  hundred  and  fifty, 
in  others  forty  by  one  hundred  and 
twenty  to  one  hundred  and  fifty.  In 
such  case,  which  size  of  lots  is  to  be 
taken  to  ascertain  the  quantity  ex- 
empt? If  the  homestead  is  claimed 
in  an  addition  where  the  lots  are 
foity  by  one  hundred  and  twentj',  is 
that  size  or  the  size  in  some  other 
addition  where  they  are  sixty  by  one 
hundred  and  fifty  to  be  taken  as  the 
measure  of  the  quantity  to  be  ex- 
empt? No  reason  can  be  given  to 
justify  going  from  one  addition 
over  to  another  to  get  the  measure 
of  quantity  that  would  not  equally 
justify  going  for  that  purpose  to  some 
other  city,  town,  or  village.  The 
only  practicable  rule  is  to  be  gov- 
erned by  the  plat  in  which  the  land 
claimed  is  laid  out  or  platted.  It  is 
true  in  a  plat  there  may  be  fractional 
lots  or  lots  materially  less  tlian  the 
ordiuaiy  size  of  lots  on  the  plat,  but 
in  such  case  the  ordinary  or  prevail- 
ing size  in  the  addition  would  prob- 
ably be  taken  as  the  measure.  The 
case  seems  a  hard  one,  but  there  is 
no  other  way  of  disposing  of  it  that 
would  be  justified  by  the  statute. 
Order  reversed." 
1  Ante.  p.  25. 


■I 


MONETARY    LIMIT    ONLY.  215 

Two  lialf-lots  may  constitute  one  lot  within  the  meaning  of 
-the  word  as  used  in  a  statute.'  The  word  does  not  imply  that 
the  ground  must  be  platted  as  an  essential  to  the  constitution 
of  a  statutory  lot.  Even  when  platting  is  contemplated  by 
the  legislator,  if  the  provision  is  merely  directory,  there  may 
be  exemption  without  conformity  to  the  direction;  that  is, 
compliance  may  be  deferred  till  it  shall  have  become  neces- 
sary by  the  levying  of  an  execution."  Then  the  officer  must 
have  the  land  platted  and  the  debtor's  homestead  set  off  be- 
fore sale.     Neglect  of  this  would  invalidate  the  sale. 

In  a  state  where  five  hundred  dollars'  worth  of  realty  is 
exempt,  there  was  a  debtor  whose  dwelling,  occupying  an 
acre  and  a  half,  was  estimated  to  be  worth  four  hundred  and 
fifty  dollars.  He  had  a  disconnected  lot,  worth  six  hundred 
and  fifty,  used  as  part  of  his  homestead.  Both  being  sold,  he 
was  held  entitled  to  the  value  of  the  first  lot,  and  fifty  dollars 
from  the  proceeds  of  the  second,  to  make  up  his  allowance.'' 

But  it  has  been  held  that  the  exemption  amount  could  not 
be  pieced  out,  by  adding  disjoined  parcels,  when  the  occupied 
home  was  worth  less  than  the  maximum}  For  the  statute 
requires  that  the  exempt  realty  must  not  only  be  owned  by 
the  beneficiary,  but  used  as  the  home  of  his  family.^ 

This  rule,  however,  did  not  exclude  the  proceeds  of  a  home- 
stead, sold  by  its  owner  in  an  adjoining  state,  from  being  held 
exempt  though  never  used  or  occupied  for  homestead  pur- 
poses for  which  they  were  intended."  The  exemption  limit 
was  the  same  in  both  states.''     The  exemption  of  proceeds  of 

'^  Ante,  p.  115.  shire  and  the  proceeds  brought  to 

2  Nye  V.  Wallaker,  46  la.  306 ;  Vermont  to  be  invested  in  a  new  res- 
Mintzer  v.  St  Paul  Trust  Co.,  74  Tex.     idence. 

20;  ante,  p.  156.  ^New  Hampshire  exempts  home- 

3  Hastie  v.  Kelley,  57  Vt.  293.  stead  to  the  value  of  $500.  Gen.  Laws, 
*  Mills  V.  Estate  of  Grant,  36  Vt.     ch.  138,  pp.  330-2.    That  sum  is  saved 

269 ;  Davis  v.  Andrews,  30  Vt.  683 ;  the  debtor  from  execution.     Austin 

True  V.  Morrill,  28  Vt.  672.  v.  Stanley,  46  N.  H.  51 ;  Buxton  v. 

5  Doane  v.  Doane,  46  Vt.  485 ;  Mor-  Dearborn,   46    N.   H.   43 ;    Horn    v. 

gan  V.  Stearns,  41  Vt.  398 ;  McClary  Tufts,  39  N.  H.  484 ;  Hoitt  v.  Webb, 

V.  Bixby.36Vt.257;  Jevvettv.  Brock,  36  N.  H.  158;  Norris  v.  Moulton,  34 

82  Vt  65 ;  Davis  v.  Andrews,  30  Vt  N.  H.  392 ;  Tucker  v.  Kenniston,  47 

683 ;  Howe  v.  Adams,  28  Vt  544.  N.    H.    267 ;    Barney    v.    Leeds,  51 

6Keyes  v.  Rines,  37  Vt  260.     The  N.  H.  253;  Fogg  v.  Fogg,  40  N.  H. 

homestead  was  sold  in  New  Hamp-  289. 


216  LIMITATIONS    OF    VALUE    AND   QUANTITY. 

an  old  homestead,  designed  for  investment  in  a  new  one,  is  a 
common  provision,^  and  in  this  case  the  court  respected  those 
coming  Itoiu  an  adjoining  state,  through  comity. 

The  two  instances  given  above,  in  one  of  which  all  the  pro- 
ceeds of  one  lot,  and  fifty  dollars  more  from  those  of  a  discon- 
nected one,  were  allowed  as  exempt  to  make  up  the  maxi- 
mum, while  in  the  other  only  the  proceeds  of  one  lot  were  held 
exempt,  are  not  in  conflict  with  each  other.  For,  in  the  first 
instance,  the  disconnected  lot  had  been  in  use  as  a  part  of  the 
lioniestead,  while  in  the  second  there  had  been  no  such  use  of 
the  outlying  lot. 

§  3.  Increase  of  Talue  After  Acquisition. 

There  is  a  marked  difference  in  the  provisions  of  the  stat- 
utes relative  to  the  increase  of  value  after  a  homestead  has 
been  acquired.  Under  some  of  them,  the  beneficiary  is  not 
entitled  to  the  increase  above  the  maximum,  value.  He  is 
allowed  that  value  though  his  home  be  sold,  as  indivisible,  in 
order  to  satisfy  his  creditors  out  of  the  surplus.^ 

As  was  said  in  a  late  opinion:  "Whatever  rights  may  be 
conferred  upon  citizens  of  other  states  under  exemption  stat- 
utes, it  is  clear  to  us  that  such  a  claim  [to  have  the  benefit  of 

1  Starr  &  Curtiss  An.  Stat.  111.,  premises  are  not  permitted  to  be  held 
p.  1097  et  seq.  In  Wisconsin,  the  pro-  as  one  homestead,  though  both  be 
ceeds  of  the  sale  of  a  homestead,  de-  worth  no  more  than  $1,000.  Walters 
signed  for  investment  in  a  new  one,  v.  People,  18  111.  194.  But  a  farm, 
are  exempt  for  two  years.  Rev.  Stats,  composed  of  different  tracts,  occu- 
Wis.,  §  2983.  And  the  interest  of  notes  pied  as  a  home,  and  being  within  the 
taken  for  the  price,  which  the  holder  monetary  limit,  and  consisting  of  not 
meant  to  employ  in  paying  for  and  more  than  forty  acres,  is  exempt.  If 
improving  a  new  residence,  was  held  it  exceed  that  acreage  and  that  value, 
exempt.  Bailey  v.  Steve,  70  Wis.  316.  the  excess  is  liable  to  creditors.  If  a 
This  may  suffice  for  illustration  of  single  lot,  occupied  as  a  homestead, 
the  exemption  of  such  proceeds  in  exceeds  $1,000  in  value,  the  "  estate 
many  states,  though  interest  on  notes  of  homestead  "  includes  no  more, 
may  not  be  so  generally  held  exempt,  though  the  lot  be  part  of  a  larger 

2  For  instance,  the  limit  in  Illinois  tract,  all  used  as  a  homestead  in  the 
is  $1,000.  If  the  homesteal  is  worth  common  meaning  of  the  word.  And 
more,  and  cannot  be  divided,  the  the  excess  of  value  of  that  lot  is  lia- 
debtor  is  entitled  to  that  amount  out  ble  to  creditors.  Raber  v.  Gund,  110 
of  the  proceeds  of  a  judicial  sale.  111.  581 ;  Hartman  v,  Shultz,  101  III. 
Stubbleheld  v.  Graves,  50  111.    103;  437. 

Hume  V.  Gossett,  43  111.  299.    Two 


INCREASE    OF    VALUE    AFTER    ACQUISITION.  217 

the  increaso]  can  have  no  foundation  in  reason  or  authority 
in  this  state.  In  growing  states,  cities,  towns  and  communi- 
ties, property  which  is  to-day  worth  but  a  thousand  dollars 
may  next  year  be  worth  five  thousand.  In  some  of  the  larger 
cities  of  the  state,  the  growth  in  valne  of  real  estate  has  been 
such  that  a  thousand  dollars'  worth  of  property,  only  a  few 
days  ago,  is  now  worth  many  thousands,"  ^ 

Yet  it  has  been  held,  where  this  rule  prevails,  that  there 
can  be  no  re-assignment  of  homestead  to  reduce  the  quantity 
when  the  value  has  increased :  the  court  saying  that  if  that 
were  permissible,  a  new^  assignment  might  be  had  to  increase 
the  quantit}'"  in  case  of  diminution  in  value.^  But,  without  re- 
assignment, the  excess  is  liable  to  the  creditor, 

A  new  homestead,  within  the  statutory  limitations,  may  be 
purchased  by  the  beneficiary  whose  old  one  has  been  sold  be- 
cause of  its  excess  and  indivisibility ;  and,  under  one  statute,  it 
seems  that  the  judge  of  probate  may  order  the  sale  of  scat- 
tered lots  worth  together  no  more  than  the  limit,  and  the  in- 
vestment of  their  price  in  a  dwelling-house  for  the  beneficiary's 
family  as  above  stated. 

When  the  constitution  or  statute  of  a  state  restrains  exe- 
cution on  the  debtor's  home  if  the  property  is  worth  no  more 
than  a  given  sum  — for  instance,  two  thousand  dollars  —  there 
is  no  such  restraint  implied  as  to  any  excess  of  value,  above 
that  sum.^  As  a  judgment  creditor  has  the  right  of  making  his 
money  out  of  that  excess,  after  homestead  estimated  at  the 
monetary  limit  has  been  laid  off",  it  seems  equally  clear  that 
if,  years  after,  another  judgment  creditor  should  look  to  any 
excess  above  the  thousand  dollars  in  value  for  the  satisfaction 
of  his  judgment,  he  might  cause  a  revaluation  of  the  home- 
stead and  levy  upon  the  excess  if  any.  But  some  of  the  courts 
say  "  Not  so."  *  The  reason  given  by  them  is :  "  The  policy 
of  the  act  is  to  secure  a  fixed  and  permanent  abode  for  the 
head  of  the  family,  his  wife  and  children,  in  the  possession  of 
which  they  should  not  be  disquieted  and  disturbed,  if  by  their 

1  Mooney  v.  Moriarity,  36  111.  Ap.  In  Nebraska  the  excess  above  $2,000 

175;  Moriarity  v.  Gait,  112  111.  373;  is  liable. 

Stubblefield  v.  Graves,  50  111.  103.  •«  Hardy  v.  Lane,  6  Lea,  380 ;  Tenn. 

2Kenley  v.  Bryan,  110  111.  652.  Code,  §§  2116a,  2118a. 

3Tingley  v.  Gregory.  30  Neb.  196. 


218  LIMITATIONS    OK    VALUE    AND    QUANTITY. 

industry  they  so  far  improve  the  premises  as  to  make  them 
really  more  valuable  than  they  were  when  first  assigned  to 
them."^  .  .  .  Is  it  the  policy  of  the  act  that  such  improve- 
ments may  be  made  at  the  expense  of  the  creditor,  or  out  of 
money  that  ought  to  have  gone  to  him ;  made  so  as  to  raise 
the  value  from  one  to  fifty  thousand  dollars,  and  yet  he  be  de- 
nied a  revaluation  and  payment  out  of  the  sum  in  excess  of 
that  which  the  law  has  declared  exempt?  If  so,  such  policy 
should  have  been  clearly  expressed  or  plainly  implied  by  the 
statute. 

Another  (and  better)  reason  given  is  that  after  homestead 
has  been  set  apart  b}''  commissioners,  and  their  certificate 
(showing  that  fact,  the  metes  and  bounds  of  the  reservation, 
etc.),  has  been  registered,  good  and  valid  title  vests  in  the 
owner  as  head  of  the  family,  and  in  his  widow  and  minor 
heirs  at  his  death,  exempt  from  execution,  according  to  the 
statute  which  the  court  was  expounding.- 

But  what  is  to  be  understood  by  the  paragraph  of  the  opin- 
ion next  to  the  concluding  one  ?  It  is :  "  We  do  not  intend  to 
decide,  one  way  or  the  other,  what  right  creditors  might  as- 
sert, in  cases  where  debtors  might  expend  extravagant  sums 
upon  the  homestead,  accumulations  which  ought  to  be  applied 
to  their  debts."  * 

Where  acceleration  of  value  is  to  the  benefit  of  the  owner, 
and  is  protected  as  exempt,  however  much  it  may  enhance  the 
homestead  above  the  original  limitation,  it  is  possible  for  very 
costly  homes  to  defy  the  creditors  of  an  insolvent,  and  quite 
common  for  dwellings  or  farms,  originally  worth  no  more 
than  a  few  hundred  dollars,  to  become  worth  as  many  thou- 
sands and  yet  remain  exempt. 

The  statutory  limitation  of  homestead  being  confined  to 
quantity,  in  the  following  words :  "  If  within  a  town  plat  it 
must  not  exceed  one-half  an  acre  in  extent,  and  if  not  within 
a  town  plat,  it  must  not  embrace  in  the  aggregate  more  than 
forty  acres ;  but  if,  when  thus  limited,  in  either  case  its  value  is 
less  than  five  hundred  dollars,  it  may  be  enlarged  till  its 
value  reaches  that  amount,"  ^  .  .  .  there  is  no  monetary 
limit  whatever  to  the  growth  of  value  after  the  homestead 

1  lb.  ^  Hardy  v.  Laue,  supra. 

2  §§  2116a,  3118a,  Tenu.  Code.  *  McC.'s  la.  Code,  §  3171  (1996). 


INCKEASE    OF    VALUE    AFTER    ACQUISITION.  219 

has  been  acquired.  Referring  to  a  homestead  of  fort\'  acres, 
with  buildings  estimated  to  cost  about  ten  thousand  dollars 
(having  terraces  and  drives,  etc.),  it  was  said :  "  It  has  seemed 
to  be  the  policy  of  legislation  in  this  state  not  to  place  restric- 
tions on  the  value  of  homesteads.  We  have  no  greater  discre- 
tion in  the  application  of  the  law  in  a  case  like  this  than  in  a 
case  where  the  homestead  as  to  value  would  be  at  the  other 
extreme."  ^ 

The  statute  fixes  no  dedication  limit  of  five  hundred  dol-r 
lars ;  it  makes  the  rule  flexible  as  to  quantity  where  the  urban 
half  acre  or  the  rural  forty-acre  farm  is  worth  less  than  that 
8um.- 

In  such  case,  the  estimate  is  made  on  the  basis  of  the  title 
in  fee.  If  the  householder  has  a  less  title,  such  as  a  life  estate, 
he  cannot  have  the  quantity  enlarged  in  consequence.  When 
the  claim  for  an  excess  of  the  statutory  quantity  is  made,  the 
burden  of  proof  is  upon  him  to  show  that  the  whole  does  not 
exceed  in  value  the  sum  above  stated  —  according  to  the  au- 
thorities above  cited. 

The  section  following  the  one  quoted  contains  another  lim- 
itation, which  is  relative  to  appurtenances:  The  homestead 
"must  not  embrace  more  than  one  dwelling-house,  or  any 
other  buildings  except  as  such  are  properly  appurtenant  to  the 
homestead;  but  a  shop  or  other  building  situated  thereon,  and 
really  used  and  occupied     .  .     and  not  exceeding  three 

hundred  dollars  in  value,  may  be  deemed  appurtenant  to  such 
homestead."     There  are  no  other  limitations  of  value. 

It  is  impossible  that  all  the  homesteads,  in  any  state,  can  be 
of  equal  value,  one  with  another.  Whether  urban  or  rural, 
they  are  subject  to  the  fluctuations  of  the  real-estate  market, 
and  difference  of  value  is  caused  by  improvements  on  the  one 
hand,  and  by  dilapidation  upon  the  other.  When  it  is  alleged 
and  proved  that  a  certain  dwelling  is  the  homestead  of  a  party 

1  First  N.  B'k  v.  HoUinsworth,  78  like  that  of  Iowa.  Compiled  Laws  of 

la.  575.  5S2.  The  court  goes  on  to  Dak.  (1887),  g§  2449-2408.  5778-5781. 
say  that  "  there   is   no   evidence    of        '  Boot  v.  Brewster,  75  la.  631 ;  s.  C, 

fraud  or  design  to  cheat  in  making  36  N.  W.  649 ;  Rhodes  v.  McCormack, 

the     expenditures."     ...     "It    is  4  la.  368;  Kurz  v.  Brusch,  13  la.  371 ; 

conceded  that  tlie  defendant  is  in-  Thorn  v.  Thorn,  14  la.  49;  Yates  v. 

solvent,"  etc.     The  Dakota  statute  is  McKibben,  66  la.  357. 


220  LIMITATIONS    OF    VALUE    AND    QUANTITY. 

litigant,  we  can  hardly  conclude  that  the  legal  quantity  and 
value  exempt  by  law  have  been  alleged  and  proved  to  be  the 
exact  extent  and  true  appraisement  of  that  family  residence. 

If  there  is  an  allegation  of  the  number  of  acres  legally  ex- 
empt, is  the  price  implied?  It  has  been  judicially  so  held,  as 
the  following  extract  will  show :  "  The  constitution  authorizes 
the  selection  and  holding  of  a  homestead  in  the  country,  not 
exceeding  forty  acres  of  land,  not  exceeding  in  value  one  thou- 
i  sand  five  hundred  dollars.  JSTow,  if  one  says, '  This  whole  par- 
'  eel  of  forty  acres  is  my  homestead,  selected  by  me  under  the 
constitution,'  would  not  that  be  considered,  by  every  one  hear- 
ing the  remark,  as  an  averment  implying  that  the  whole  prem- 
ises were  worth  not  to  exceed  the  constitutional  limit?  There 
is  no  necessity  of  any  technicality  of  pleading,  either  at  law 
or  in  equity,  in  this  age  of  liberality  and  advancement  in  the 
administration  of  justice.  That  averment  is  sufficient,  either 
in  declaration  or  bill  of  complaint,  which  necessarily  covers 
with  its  lanffuage  the  full  information  of  the  claim  souo^ht  to 
be  collected  or  enforced.  The  language  of  the  pleader,  in  the 
bill  of  complaint  before  us,  clearly  imports  that  the  whole  forty 
acres  is  claimed  as  a  homestead,  which  necessarily  implies  that 
it  is  not  worth  over  one  thousand  five  hundred  dollars;  and 
that  as  plainly  as  if  the  fact  itself  were  stated  in  words  and 
figures." ' 

As  the  report  shows  that  the  homestead  had  been  held 
twenty-two  years,  and  that,  besides  the  dwelling-house  and 
other  buildings,  there  was  a  barn,  one  hundred  feet  long,  on 
this  tract  of  forty  acres,  it  is  not  likely  that  the  homestead 
had  not  risen  above  the  value  of  one  thousand  five  hundred 
dollars  since  its  selection.  One  cannot  but  think  that  some 
persons  would  be  inclined  to  make  a  negative  answer  to  the 
t  question  propounded  by  the  court  in  the  extract  quoted  above. 
If  the  allegata  be  sufficient,  the  ])robata  should  correspond : 
the  pleader  should  prove  that  his  homestead  is  not  worth  more 
than  one  thousand  five  hundred  dollars,  if  he  has  alleged  it. 
Every  one  knows  that  homesteads  have  increased  in  value  by 
improvements  within  the  period  mentioned,  or  may  have  thus 
increased. 

1  Evans  v.  Grand  Rapids,  etc.  Co.,  68  Midi.  603. 


QUAXTITATIVK    LIMIT    ONLY.  221 

§  4.  Quantitative  Limit  Only. 

The  only  limitation  in  some  states  is  that  of  extent.  What- 
ever the  value,  the  quantity  of  real  estate  selected  is  the  only 
criterion.'  Even  though  the  double  restriction  be  required  in 
the  original  selection  or  setting  apart  of  the  homestead,  the 
test  of  value  is  omitted  when  the  quantity  has  been  reduced 
to  a  designated  amount  or  below  it,  under  the  provisions  of 
several  states.  Thus,  where  the  monetary  limit  of  twenty- 
five  hundred  dollars  is  fixed  by  a  constitution  for  a  rural 
homestead  of  one  hundred  and  sixty  acres,  or  for  an  urban 
one  of  an  acre,  each  with  its  improvements,  it  is  provided  that 
if  the  former  be  reduced  to  less  than  eighty  acres,  or  the  latter 
to  less  than  a  quarter  of  an  acre,  no  monetary  test  shall  be 
applied.- 

When  there  is  quantitative  limitation,  the  homestead  right 
will  be  confined  to  it,  though  the  tract  occupied  may  be  much 
larger.  There  was  a  farm  of  about  one  hundred  acres  which 
was  sold  —  the  grantor  before  the  sale,  and  the  grantee  after- 
wards, occupied  it  as  a  home  residence;  but  no  more  than 
forty  acres  of  it  were  held  exempt.^ 

In  the  pioneer  state,  where  the  first  homestead  was  author- 
ized and  where  the  rule  of  limitation  has  undergone  many 
changes,  the  present  provision  is  this :  The  homestead  of  a 
family  to  the  amount  of  two  hundred  acres  of  land  with  im- 
provements, or  a  lot  or  lots  in  a  town  to  the  value  of  five 
thousand  dollars  exclusive  of  improvements,  used  as  a  home  or 
as  a  place  of  business  by  the  head  of  the  family,  is  exempt,  with 
the  improvements  thereon,  except  as  to  claims  for  purchase- 
money,  improvements  or  taxes."*     It  will  be  observed  that 

1  For  example :  In  Florida  there  is  Wis.,  p.  1717,  §  2983.     In  Minnesota. 

exemption  of  one  hundred  and  sixty  a  city  lot  or  eighty  acres  of  rural  land, 

acres  in  the  country,  or  half  an  acre  Sumner  v.  Sawtelle,  8  Minn.  272 :  Til- 

in  town,  with    improvements.     Me-  lotson  v.  Millard,  7   Minn.    419.     A 

Clellan's  Dig.  of  Laws  of  Fla.,  pp.  town  home  in  Minnesota  cannot  be  on 

538-9.     In  Kansas,  one  hundred  and  parts  of  lots.    Kresin  v.  Mau,  15  Minn, 

sixty  of  "farming  land,"  or  one  acre  118;  Ward  v.  Huhn,  16  Minn.  161. 

in  town,    including   improvements.  2  CQngt.  of  Arkansas,  art.  IX,  §§3-6; 

•Const,  of  Kas.,  art.  15,  §  9 ;  Taylor's  Dig.  of  Stat,  of  Ark.,  §§  3590-3. 

Gen.  Stat.  (1889),  §§235,2593-7.    In  » Martin  v.  Aultman  (Wis.),  49  N.W. 

Wisconsin,  forty  acres  "  used  for  ag-  749. 

ricultural  purposes,"  or  one-fourth  of  *  Const,  of  Texas,  art.  16,  §§  50-2. 

an  acre  in  town,  with  improvements.  In  Texas  a  home  and  a  business  es- 

■Sanborn  &  Berryman's  An.  Stat,  of  tablishment  are  both  exempt. 


222  LIMITATIONS    OF    VALUE    AND    QUANTITY. 

there  is  no  limit  whatever  to  the  monetary  vakie  of  the  country 
home  of  two  hundred  acres.  If  it  has  liad  improvements  put 
upon  it  before  its  selection  and  dedication,  so  as  to  render  it 
worth  ten  thousand  dollars  or  more,  it  could  still  be  selected. 
Or,  if  it  be  improved  after  selection,  to  that  or  any  amount,  it 
would  still  be  exempt  under  the  constitution. 

The  site  of  the  urban  home  must  not  exceed  five  thousand 
dollars  in  value,  but  the  dwelling  and  other  improvements  are 
not  estimated,  and  they  may  be  worth  far  more  than  the 
ground  on  which  they  stand.  They  subsequently  ma}^  be  en- 
larged and  embellished  to  any  degree.  The  only  danger  of 
transcending  the  homestead  limit  is  in  rendering  the  ground 
too  valuable.  It  is  thus  seen  that  both  rural  and  urban  home- 
steads are  practically  without  monetary  limitation. 

The  only  difference  between  them  is  that  the  town  ground- 
site  is  limited  monetarily  while  the  country  land  is  not.  Two 
householders,  acquiring  homesteads  at  the  same  time,  are 
treated  differently  because  one  settles  in  town  and  the  other 
in  the  country.  One's  city  lot  or  lots  may  be  of  the  full 
maximum  value,  five  thousand  dollars,  while  the  other's  plan- 
tation of  two  hundred  acres  may  be  worth  twice  or  several 
times  as  much.  Buildings  and  other  improvements  may  be 
equal  —  they  are  not  estimated  in  either  case.  The  fact  that 
this  disparity  is  made  by  the  constitution  does  not  relieve  it 
wholly  of  objection.  Were  it  statutory  only,  perhaps  it  would 
be  questioned.  This  distinction  between  town  and  country 
homesteads  is  not  found  in  other  states,  as  to  monetary 
value. 

Even  the  plantation  acreage  has  been  extended  beyond  the 
statute  figures  to  cover  the  case  of  the  owner  of  an  undivided 
interest  in  a  tract  of  land  consisting  of  more  than  two  hun- 
dred acres.  His  homestead  right  was  found  to  be  not  con- 
fined to  his  undivided  interest  m  two  hundred  acres  with 
improvements,  but  to  extend  to  an  undivided  interest  of  two 
hundred  acres  of  the  whole  tract. ^ 

If  the  homestead  plantation,  after  having  been  duly  dedi- 
cated or  set  out,  should  ever  find  itself  in  town  by  reason  of 
the  extension  of  the  municipal  corporation  limits,  would  it 

1  Brown  v.  McLennan,  60  Tex.  43 ;  Jenkins  v.  Volz,  54  Tex.  639. 


INDIVISIBLE    AND    EXCESSIVE    PKOl'ERTY.  223 

then  come  under  the  five  thousand  dollars  limitation?  The 
negative  has  been  held.^ 

This  extensive  memmuje  need  not  be  all  of  a  piece.  It  may 
consist  of  different  parcels,  and  they  are  not  required  to  be 
contiguous.-  Its  parcels,  however,  must  constitute  one  home, 
or  a  home  and  a  business  place;  these  two  need  not  be  joined 
or  adjacent.'' 

While  the  same  beneficiary  may  have  a  homestead  and  an 
exempt  business  place  both  within  town  lines,  or  both  with- 
out town  lines,  it  seems  that  he  cannot  distribute  his  exemp- 
tion right  so  as  to  have  it  partl}^  urban  and  partly  rural, 
unless  he  can  show  good  cause  for  such  distribution.* 

§  5.  Indivisible  and  Excessive  Property. 

It  was  held,  in  one  state,  that  when  a  homestead  has  been 
reduced  to  its  "  lowest  practicable  area,"  and  still  exceeds  the 
monetary  limit,  it  is  not  exempt ;  no  part  of  it  is  protected 
from  creditors,  and  there  is  no  restraint  of  alienation.  The 
owner  may  mortgage  it  or  sell  it  at  will,  and  a  judgment 
creditor  may  sell  it  under  execution.^  The  homestead  is  ex- 
empted by  the  constitution  in  that  state,  yet  the  terms  are 
such  that  an  indivisible  home  property,  excessive  in  value, 
fails  to  answer  the  description  of  the  homestead  contemplated 
by  the  framers  of  the  instrument,  and  the  statute  accords.* 

It  frequently  happens  that  the  quantitative  and  monetary 
limits  cannot  each  be  at  its  maximum.  A  town  lot,  or  a  quar- 
ter section  of  land  in  the  county,  may  be  worth  far  more  than 

1  Bassett  v.  Messner,  30  Tex.  604,  acres,  in  Texas,  cannot  be  made  less 

Q36.    The  limit  was  less  when  this  by  the  beneficiary  who  owns   that 

decision    was    rendered.      Allen     v.  amount    of    land    and    more,   in    a 

Whitaker  (Tex.),  18  S.  W.  160.  tract,   it  would    seem.     Radford    v. 

2Macmanus   v.  Campbell,  37  Tex.  Lyon,   65   Tex.   471.     Citing   to    the 

267 ;  Ragland  v.  Rogers,  34  Tex.  617 ;  same  effect,  Medlenka  v.  Downing, 

Williams  v.  Hall,  33  Tex.  215 ;  Camp-  59  Tex.  37  (as  rendered  "  without  the 

bell  V.  Macmanus,  32  Tex.  442 ;  Home-  aid  of  statute)." 

stead  Cases,  31  Tex.  678.  5  Farley  v.  Whitehead,  63  Ala.  295. 

3  Stanley  v.  Greenwood,  24  Tex.  **  Ala.  Code,  2820.  Present  constitu- 
225  ;  Pryor  v.  Stone,  19  Tex.  871 ;  tion  like  that  of  1868  in  this  respect 
Hancock  v.  Morgan,  17  Tex.  582.  Acreage  changed     Sec  Pizzalla    v. 

4  Keith  V.  Hyndman,  57  Tex.  425.  Campbell,  46  Ala  40 ;  Melton  v.  An- 
Rural  homestead   of    two    hundred  drews,  45  Ala.  454. 


224:  LIMITATIONS    OK    VALUE    AND    (QUANTITY. 

the  highest  estimation  allowed  as  exempt.  In  such  case,  the 
quantity  must  be  reduced,  if  practicable.  But  limit  has  been 
fixed  to  the  reduction.  A  state,  which  limits  the  town  home 
stead  to  an  acre,  and  the  country  one  to  one  hundred  and 
sixty  acres,  provides  that  the  former  to  the  extent  of  a  quarter 
of  an  acre,  and  the  latter  to  the  extent  of  eighty  acres,  shall  be 
exempt  "regardless  of  value."  That  is  to  say,  that  when'once 
duly  established  and  within  the  value  of  twenty-five  hundred 
dollars,  it  is  not  lost  when  thus  reduced,  though  the  quarter  of 
an  acre,  or  the  eighth  of  a  section  in  value,  exceed  that  sum.^ 
The  general  rule  is,  however,  as  already  stated,  that  property 
designated  as  a  homestead,  but  hmited  by  law,  is  liable  to 
forced  sale  for  debt  so  far  as  it  exceeds  the  limitation.- 

The  lienholder  can  satisf}^  his  claim  against  the  excess  only 
(according  to  a  decision  after  a  change  of  statute),  if  he  holds 
a  deed  of  trust  on  the  homestead  property  given  by  both  the 
debtor  and  his  wife,  to  secure  a  debt,  and  the  husband  has 
since  died.  Upon  his  death,  her  homestead  rights,  as  against 
the  trust  deed,  become  established.^  The  value  of  the  prop- 
erty at  the  time  of  the  death  determines  whether  there  is 
excess  of  the  statutory  limitation.* 

§  6.  Extension  of  Corporate  Bounds. 

When  the  rural  homestead  becomes  urban  by  the  extension 
of  town  limits,  it  ought  to  be  measured  by  the  rule  applicable 
to  the  latter,  if  it  has  been  laid  out  as  town  lots.  If,  on  the 
contrary,  it  is  brought  in  by  the  extension  of  the  corporation 
lines,  but  is  still  used  for  agricultural  purposes,  and  is  yet  a 
homestead  farm,  it  would  be  within  the  spirit  of  the  constitu- 
tions and  laws  treating  upon  the  subject  to  hold  it  still  a 
rural  homestead,  entitled  to  its  original  acreage.  The  decis- 
ions are  not  all  in  accord,  even  under  the  same  or  similar  leg- 
islation,^ as  the  following  examples  show : 

1  Digest  Stat  of  Arkansas  (1884),  482 ;  Paschal  v.  Cushman,  26  Tex.  74 ; 

§g  2994-6 ;  Const  of  Arkansas,  art  9,  Gregg  v.  Bostvvick,  33  Cal.  222. 

§§    1-5.     The    monetary    maximum  ^  McLane  v.  Paschal,  74  Tex.  20. 

has  been  reduced  from  five  thousand  •*  lb.;  Wood  v.  Wheeler,  7  Tex.  25. 

to  two  thousand  five  hundred  dol-  •''  Favorable  to  rural  measurement : 

lars.    Dig.,  §  2994 ;  Wassell  v.  Tunnah,  Taylor  v.  Boulware,  17  Tex.  74 ;  Bas- 

25  Ark.  104.  sett  v.  Messner,  30  Tex.  604 ;  Nolan 

2Hargadene  v.  Whitfield,  71  Tex.  v.  Reed,  38  Tex.  425;  Finley  v.  Diet- 


EXTENSION  OF  CORPORATE  BOUNDS.  225 

A  rural  homestead  becoming  urban  by  its  inclusion  within 
incorporated  limits,  or  becoming  surrounded  by  land  platted 
by  others,  does  not  have  to  be  reduced  in  area  as  a  necessary 
consequence.' 

Town  limits  were  extended  so  as  to  include  one's  rural  home- 
stead of  seven  acres;  but,  as  the  exempt  land  had  not  been 
platted,  the  owner  was  adjudged  to  have  lost  no  right  in  it  as 
a  rural  homestead.^ 

A  homestead  partly  in  town  and  partly  in  the  country,  con- 
sisting of  a  hotel  (in  which  the  householder  resided  with  his 
family  and  also  conducted  his  business  as  a  hotel-keeper),  and 
of  a  farm  slightly  separated  from  the  urban  property,  was 
recognized  as  legally  exempt,  since  the  monetary  value  of  the 
whole  was  not  in  excess  of  that  allowed  by  law^ 

Where  one  lot,  with  its  improvements,  is  the  urban  limita- 
tion, and  forty  acres  the  rural,  it  is  yet  held  that  the  latter 
quantity,  if  unplatted,  may  be  within  corporation  limits,^  And 
further,  that  this  may  be  platted  after  its  acquisition  as  a 
homestead  without  forfeiting  the  exemption.*  But  two  platted 
lots,  resided  upon  by  the  owner,  and  both  together  within  the 
monetary  limits,  are  not  exempt  if  a  business  block  is  situated 

rick,  12  Ta,  516 :  Barber  v.  Rorabeck,  lage,  not  over  $2,000  in  valiia     In 

36  Mich.  399.     Unfavorable  :  Bull  v.  Mississippi  the  head  of  a  family  may 

Conroe,  13  Wis.  233;  Parker  v.  King,  hold  his   town  residence  exempt  to 

16   Wis.    223 ;  Sarahos   v.   Fenlon,   5  the  extent  of  $3,000,  or  his  country. 

Kas.  592.  residence  to  that  extent  if  embrao- 

'  Baldwin  v.  Robinson,  39  Minn.  244 ;  ing  not  more  than  one  hundred  and 

Gen.  Stat.  Minn.  (1878),  ch.  68,  §  1 ;  sixty  acres.     Miss.  Acts  1882,  p.  140, 

Finley  v.  Dietrick,   12  la.   516;  Mc-  amending   §   1248  of   Rev.    Code  of 

Daniel  v.  Mace,  47  la.  509 ;  Bassett  v.  1880,  as  to  quantity.     Formerly,  the 

Messner,  30  Tex.  604 ;  Barber  v.  Rora-  allowance  was  greater.     Morrison  v. 

beck,  36  Mich.  399.  McDaniel,  30  Miss.  217 ;  Johnson  v. 

2  Posey  V.  Bass,  77  Tex.  512 ;  14  S.  W.  Richardson,    33    Miss.   462.     Within 

156.  the  money  value,  part  of  the  prem- 

» Parisot  v.  Tucker,  65  Miss.  439.  ises  may  be  used  for  business.  Bald- 
Mississippi  Code,  1880,  §  1248,  allows  win  v.  Tillery,  62  Miss.  378.  The 
"  the  land  and  buildings  owned  and  same  acreage  and  value  are  allowed 
occupied  as  a  residence,"  not  exceed-  in  Nebraska.  Comp.  Stat  Neb.  (1889), 
ing  eighty  acres  not  over  $2,000  in  ch.  30,  §§1-16;  Spitley  v.  Frost  (Neb.), 
value.  Section  1249  allows  the  land  15  Fed.  299,  303. 
and  buildings  owned  and  occupied  *  Barber  v.  Rorabeck,  36  Mich.  399. 
as  a  residence  in  a  city,  town  or  vil-  s  Bouchard  v.  Bourassa,  57  Midi.  8. 
15 


226  LIMITATIONS    OF    VALUE    ANT)    QUANTITY. 

thereon.'  Parts  of  adjacent  lots,  worth  not  more  than  the 
inhximum,,  constituting  together  the  site  of  the  family  resi- 
dence, were  held  exempt.^ 

If  a  tract  of  the  dimensions  allowed  for  a  rural  homestead 
be  taken  in  so  as  to  be  embraced  within  the  corporate  limits 
of  a  village  or  town,  it  does  not  therefore  lose  its  exempt 
character  as  excessive  in  quantity.  While  yet  unplatted,  and 
not  exceeding  the  monetary  limit  in  value,  it  is  still  exempt 
as  before  the  extension  of  the  corporation  lines  so  as  to  era- 
brace  it.^ 

The  right  to  the  number  of  acres  of  land  allowed  for  a  rural 
homestead,  not  exceeding  the  monetary  limitation,  has  been 
held  to  be  not  affected  by  the  inclusion  of  the  exempt  acres 
within  town  limits  after  the  selection  of  the  homestead.  This 
ruling  has  been  supported  by  reference  to  the  benevolent  pur- 
pose of  homestead  legislation  and  the  rule  of  liberal  construc- 
tion based  on  that  purpose.  And  it  has  been  defended  on  the 
argument  that  the  right  to  the  rural  homestead  was  vested, 
and  could  not  be  divested  by  the  action  of  the  authorities  in 
changing  the  boundaries  of  the  town.  Without  concedino: 
that  there  was  a  vested  right,  others  holding  to  liberal  con- 
struction maintain  that  it  is  a  valuable  right,  and  sustain  the 
ruling  on  grounds  of  public  policy.*  But  there  are  counter 
deliverances.^ 

The  homestead  acre  within  city  limits  need  not  be  occupied 
as  a  home  in  every  part  to  entitle  it  to  the  legally  authorized 
exemption,  provided  none  of  it  is  used  for  a  different  or  in- 
consistent purpose.  The  acres  of  a  rural  homestead  are  sub- 
ject to  the  same  view.**  But  if  a  part  of  the  tract  run  into  an 
incorporated  town,  it  will  be  liable  for  debt,  though  the  whole 
should  not  exceed  the  number  of  acres  exempt  by  law  as  a 
rural  homestead.^ 

» Geney  v.  Maynard,  44  Mich.  579.  v.  Chapman,  25  111.  498 ;  Webster  v. 

2Geiges  v.  Greiner,  68  Mich.  153;  Orne,  45  Vt.  40;  Nolan  v.  Eeed,  38 

S.  C.,  36  N.  W.  48.     In   Michigan,  a  Tex.  425;  Clark  v.  Nolan,  38  Tex.  416. 

town  lot,  or  forty  acres  in  the  coun-  Vested  right:  Bassett  v.  Messner,  30 

try,  not  exceeding  $1,500  in  value,  is  Tex.  G04. 

the  limit.  Howell's  Stat,  §  7731;  5  Bull  v.  Conroe,  13  Wis.  260;  Par- 
Const.,  art.  16,  §  2.  ker  v.  King,  16  Wis.  237. 

3  Barber  v.  Rorabeck,  36  Mich.  399.  «  Morrissey  v.  Donohue,  82  Kas.  646. 

4  Barber  v.  Rorabeck,  36  Mich.  399 ;  '  Sarahas  v.  Fenlon,  5  Kas.  593. 
Finley  v.  Dietrick,  13  la  516 ;  Deere 


WHAT    LAW    (iOVKRNS    LIMITS.  227 

The  number  of  acres  constituting  a  country  homestead  can- 
not retain  their  inviolable  character  with  reference  to  forced 
sales  after  having  come  within  incorporated  tcnvn  limits;  only 
the  urban  quantit}""  can  then  be  thus  favored,'  though  the  re- 
duction from  the  greater  number  of  acres  to  the  less,  under 
statutory  construction,  may  de])end  upon  the  platting  into 
lots.2 

This  reduction  of  quantity,  Avhen  a  rural  homestead  is  con- 
verted into  an  urban  one,  cannot  be  laid  down  as  an  invaria- 
ble rule.  The  contrary  has  been  held,  upon  construction  of 
provisions  that  do  not  expressly  authorize  any  variation  from 
the  rule.  Though  the  statute  limited  the  area  of  a  rural 
homestead  but  not  of  an  urban,  it  was  construed  to  allow  one 
to  be  located  partly  in  town  and  partly  in  the  country,  within 
the  urban  monetary  limit.^ 

§  7.  What  Law  Governs  Limits. 

The  limitations  are  to  be  governed  by  the  law  in  force 
when  the  debt,  sought  to  be  enforced  against  the  homestead, 
was  contracted.  Whatever  was  then  the  quanhmi  and  value 
exempt  is  now  the  only  impediment  to  the  creditor.  Addi- 
tions under  new  statutory  authorizations  cannot  affect  his 
remedy  against  the  excess  of  the  old  homestead.  It  would  be 
manifestly  unjust  to  him  were  the  rule  otherwise;  and  the 
rule  cannot  be  otherwise  without  trenching  upon  the  consti- 
tution which  protects  his  vested  rights,  and  his  remedy  to  en- 
force them  so  far  as  it  is  essential  to  those  rights.  So,  if  the 
monetary  limit  be  raised,  or  the  allowable  extent  be  enlarged, 
by  statute  or  even  by  constitution,  the  debtor  will  not  be  pro- 
tected against  debts  previously  contracted  so  far  as  the  subse- 
quent additions  to  his  homestead  are  concerned.^ 

If  the  surety  of  a  creditor  is  proceeding  against  the  debtor's 

iGray  v.  Crockett,  30  Kas.  138,  and  *Peevey  v.  Cabaniss,  70  Ala  253; 

31  Kas.  346.  Keel  v.  Lark  in,  72  Ala.  493:  Coch- 

2SeeFinley  V.  Dietrick,  12  la,  516.  ran  v.  Miller,  74  Ala.  50;  Boiling  v. 

3  Fitzgerald   v.    Rees,  67  Miss.  473,  Jones,  67  Ala.  508 ;  Gerding  v.  Beall, 

under    Code  of    1880,   §  1249.     See  63  Ga.  561 ;  Hawks  v.  Hawks,  64  Ga. 

amendment,  Acts  of  1882,  p.  140,  as  239;  Dixon  v.   Lawson,  65  Ga  661; 

to  the  rural  acreage.     .See  Keitli  v.  Lowdevmilk  v.  Corpening,  92  N.  C. 

Hyndman,   57  Tex.  425 ;    Bassett   v,  333 ;  Wright  v.  Straub,  64  Tex.  64  ; 

Messner,  30  Tex.  604,  606.  McLane  v.  Paschal,  62  Tex.  102. 


228  LIMITATIONS    OF    VALUE    AND    QUANTITY. 

homestead,  the  time  when  he  contracted  as  surety  governs  as 
to  what  portion  of  the  property  is  liable  now;  that  is  to  say, 
what  was  then  homestead  is  exempt  noio  as  to  him,  and  no 
more,  though  the  homestead  may  have  been  enlarged  since  in 
extent,  value,  or  both,  under  a  subsequent  law.'  When  the 
limitation  is  fixed  by  the  constitution,  the  legislature  cannot 
enlarge  or  diminish  it.- 

While  a  lien  cannot  be  dislodged  by  a  statute,  a  new  one 
cannot  be  saddled  upon  a  homestead  by  statute  after  its  ex- 
empt character  has  been  established,  unless  for  obligations 
coming  under  the  exceptions  to  exemption.^ 

A  monetary  limit  fixed  by  one  constitution  may  be  contin- 
ued unchanged  by  another  succeeding  it  so  as  not  to  affect 
a  homestead  right  acquired  under  the  former.  Where  two 
thousand  dolkirs  in  value  was  the  limitation,  and  a  new  con- 
stitution reduced  it  to  one  thousand,  an  applicant  for  home- 
stead to  the  larger  amount,  whose  right  had  accrued  under 
the  first  instrument,  was  allowed  his  prayer  after  the  second 
had  gone  into  effect.  The  second  constitution  had  been  made 
before  the  right  accrued  but  had  not  been  ratified:  so  the  ap- 
plicant's right  was  governed  by  the  former  one.  There  was 
this  provision  in  the  second — the  constitution  now  in  force: 
"  Homesteads  .  .  .  which  have  been  heretofore  set  apart 
by  virtue  of  the  provisions  of  the  existing  constitution  of  this 
state,  and  in  accordance  with  the  laws  for  the  enforcement 
thereof,  or  which  may  be  hereafter  set  apart  at  any  time,  shall 
be  and  remain  valid  as  against  all  debts  and  liabilities  existing  at 
the  time  of  the  adoption  of  this  constitution,  to  the  same  extent 
that  they  would  have  been  had  said  existing  constitution  not 
been  revised."  Commenting  on  this  provision,  the  court  said : 
"  The  phraseology  of  the  section  which  we  have  quoted  clearly 
contemplates  that  the  setting  apart  of  the  larger  allowance, 
provided  for  by  the  constitution  of  1868,  might  go  for  an  in- 
definite time  in  the  future,  and  that  the  property  so  set  apart 
'  at  any  time  '  should  be  protected  against  any  and  all  debts, 
etc.,  which  arose  whilst  that  constitution  was  in  force.     The 

•  Keel  V.  Larkin,  supra.  '  Gumming  v.  Bloodworth,  87  N.  G 

^  Wharton  V.  Taylor,  88  N.  C.  230     83;  Lanahan  v.  Sears,  103  U.  S.  318. 

{overruling  Martin  v.  Hughes,  67  N.  C. 

293) ;  Witliers  v.  Jenkins,  21  S.  C.  365. 


EXEMPTION    OF    REAL    AND    PERSONAL    PKOPKltTY.  220 

new  constitution  (1877)  is  to  be  considered  as  speaking  from 
the  time  it  became  authoritative  and  operative  as  a  constitu- 
tion, and  not  from  the  time  the  convention  framed  it  and 
agreed  to  it.  The  term  '  hereafter  '  does  not  mark  a  period 
ending  with  the  actual  substitution  of  the  new  constitution  for 
the  old,  but  an  intermediate  duration  beginning  with  that  sub- 
stitution. It  follows  that  the  application  we  are  dealing  with 
is  consistent  with  both  constitutions  and  did  not  come  too  late. 
As  to  the  class  of  debts  and  liabilities  here  involved,  the 
homestead  and  exemption  provisions  of  the  earlier  constitu- 
tion are  by  the  later  one  continued  in  full  force." ' 

After  the  repeal  of  a  homestead  or  any  exemption  law,  a 
claim  not  founded  on  rights  existing  when  the  law  was  in 
force  —  not  asserted  then  —  cannot  be  successfully  preferred.^ 

A  new  constitution  having  fixed  the  monetary  maximum  of 
homestead  exemption  higher  than  the  former  one  had  done,  it 
was  construed  to  have  no  retroactive  effect.  The  holder  of  a 
homestead  under  the  old  constitution,  which  was  of  the  maxi- 
mum value  when  designated,  and  which  had  since  increased  to 
the  highest  sum  allowed  as  exem])t  under  the  new  provision, 
was  held  not  authorized  to  claim  more.* 

§  8.  Exemption  of  Real  and  Personal  Property. 

In  a  state  where  real  and  personal  property,  or  either,  as 
the  debtor  may  choose,  is  exempt  from  execution  to  a  certain 
limit  of  value,  there  is  exemption  but  not  necessarily  any 
homestead  protection  as  such.  A  piece  of  land  or  a  chattel 
may  be  above  this  value  yet  indivisible  :  then  the  exempt  sum 
is  reserved  from  the  proceeds  of  an  execution  sale,  as  in  case 
of  excessive  and  indivisible  homesteads  in  other  states.  The 
selection  of  land  or  chattels,  within  the  limits,  should  be  by 
the  owner :  by  the  husband,  if  he  is  the  owner ;  *  by  the  wife, 
if  she  is ;  *  and  it  has  been  held  that  a  brother  may  select  for 

1  Gerding  v.  Beall,  63  Ga.  561.  Martin,    12    Ind.    553 ;     Sullivan    r. 

2  Clark  V.  Snodgrass,  66  Ala.  233.  Wiuslow.  22  Ind.  154.     Six  hundred 

3  Linch  V.  Broad,  70  Tex.  92  ($5,000  dollars  of  real  or  personal  property, 
maccmmm  by  Const.  Texas) ;  McLane  or  of  both,  or  of  either,  exempt  iu 
V.  Paschal,  62  Tex,  102.  Indiana. 

*  State  V.  Melogue,  9  Ind.  196 ;  Aus-        ■''  Crane  v.  Wagoner,  33  Ind.  83. 
tin  V.  Swank,  9  Ind.  109 ;  Holnian  v. 


23()  LIMITATIONS    OF    VALUE    AND    QUANTITY. 

his  sister  who  is  the  owner,  when  hving  in  her  family  and  con- 
tributing to  its  support.^ 

There  is  an  allowance  in  lieu  of  homestead,  determined  by 
facts  existing  when  a  surplus  remains  after  selling  the  home- 
stead and  satisfying  creditors  so  far  as  the  non-exempt  por- 
tion can  do  so.  The  court,  in  disposing  of  the  surplus,  makes 
the  allowance.  This  course,  not  presented  here  as  generally 
followed,  is  authorized  by  a  state  statute.^ 

There  is  a  constitutional  exemption  of  real  or  personal 
property,  or  both,  selected  by  the  debtor,  to  the  amount  of 
two  thousand  dollars,  in  addition  to  the  articles  exempt  from 
levy  or  distress  for  rent.^ 

What  part  of  this  amount  is  taken  in  realty  as  a  homestead 
must  be  claimed  by  the  owner.  All  the  exemption,  to  the 
amount  of  two  thousand  dollars,  he  may  have  in  realty  set 
apart  as  a  homestead  as  required  by  statute.*  He  is  not  en- 
titled by  virtue  of  the  constitution,  if  he  fails  to  comply  with 
the  mode  prescribed  by  statute.  The  constitution  does  not 
confer  the  exemption  absolutely,  but  authorizes  it  upon  his 
selection  of  the  property ;  and  the  legislature  has  pointed  out 
how  the  selection  shall  be  made.  The  code  is  held  to  be  rec- 
oncilable with  the  constitution,  in  this  matter.^ 

The  constitution  of  another  state  exempts  property  real  or 
personal,  or  both  (belonging  to  the  head  of  a  family,  trustee 
of  minors,  etc.),  to  the  amount  of  sixteen  hundred  dollars.** 
There  are  two  forms  of  homestead  exemption  recognized: 
one  under  the  constitution  directly  and  the  other  under  stat- 
ute ;  but  the  beneficiary  cannot  have  both. 

In  another  state,  a  defendant  may  select  real  or  personal 
property  to  the  amount  of  one  hundred  dollars, —  the  value 
ascertained  by  appraisers  at  the  time  of  levy, —  which  shall  be 
exempt  in  "  any  civil  proceeding  whatever,"  except  on  judg- 

1  Graham  v.  Crockett,  18  Ind.  119.        3  Const.  Va.,  art.  XI,  §§  1,  3,  5. 

2  Ohio  Rev.  Stat.,  §  5441 ;  Niehaus  *  Va.  Code,  ch.  183 ;  Wray  v. 
v.  Paul,  43  Ohio  St.  63 ;  Bills  v.  Bills,     Davenport,  79  Va.  19. 

41   Ohio    St.   206;    Bartram   v.  Mc-  ^Linkenhoker  v.   Detrick,  81  Va. 

Cracken,  41  Ohio  St.  877 ;  Jackson  v.  44 ;  Reed  v.  Union  Bank,  29  Gratt 

Reid,    32    Ohio    St.    443;    Kelly    v.  719;  White  v.  Owen,  30  Gratt.  43. 

Duffy,   31   Ohio  St  437 ;  Cooper   v.  *-  Const.  Ga.  (1877),  art   IX,  sec.  1 

Cooper.  24  Ohio  St.  488.  et  seq. 


EXEMPTION    OF    KEAL    AND    PERSONAL    PKOPERTY. 


231 


ment  for  breach  of  promise  to  marry  or  for  seduction.  If  the 
property  seized  is  indivisible,  the  defendant  is  entitled  to  a 
hundred  dollars  from  the  ])roceeds  of  sale.^ 

In  yet  another,  three  hundred  dollars'  worth  of  realty  or 
personalty  or  both  are  saved  to  the  debtor  from  execution, 
the  value  ascertained  by  api)raisement,  and  the  exempt  amount 
reserved  from  the  sale  of  indivisible  property,  as  above.'^  The 
exemption  must  be  claimed  by  the  debtor,  since  otherwise  his 
right  to  it  would  be  forfeited.  He  would  be  deemed  to  have 
acquiesced  in  the  sale  of  all  the  property  levied  upon.  When 
duly  claiming,  he  retains  or  rather  avails  himself  of  the  right, 
so  that  even  if  all  must  be  sold  because  not  susceptible  of 
division,  he  would  have  the  amount  of  the  exemption  paid- to 
him  from  the  proceeds.''  A  claim  made  on  the  day  of  sale  was 
held  to  be  in  time.* 


1  Rev.  Code  of  Md.,  p.  623. 

2  Brightly's  Pur.  Dig.,  I,  pp.  636-8. 

3  Bowman  v.  Smiley,  31  Pa.  St.  235  ; 
Dodson's   Appeal,    25    Pa.    St.   234; 


LKller's  Appeal,  16  Pa.  St.  300 ;  Line's 
Appeal,  2  Grant's  Cas.  198. 
*  Seibert's  Appeal,  73  Pa  St  361. 


Monetary  Limitations. 


No  money 


Alabama  .     . 
Arizona     . 
Arkansas  . 
California 
Colorado  . 
Florida      ,     . 

Georgia 

Idaho  (head  of  family) 

Idaho  (others) 

Illinois 

Iowa    ....      No  money 
Kansas      .     .     .      No  money 

Kentucky       

Louisiana 

Maine 

Massachusetts 

Michigan 

Minnesota      .     .      No  money 

Mississippi 

Mississippi  (if  recorded)     . 

Missouri 

Montana 

Nebraska 

Other  states 


$2,000 
4,000 
2,500 
5,000 
2,000 

limit 
1,600 
5,000 
1,000 
1,000 

limit 

limit 
1,000 
2,000 
500 
800 
1,500 

limit 
2,000 
3,000 
1,500 
2,500 
2,000 


No  monev 


Nevada 

New  Hampshire 
New  Jersey    . 
New  Mexico  . 
New  York 
North  Carolina 
North  Dakota 
Ohio     .      .      . 
Oklahoma 

South  Carolina 

South  Dakota 

Tennessee 

Texas,  urban 

Texas,  rural  .     .       No  money 
Utah  (head  of  family)  . 

Utah  (wife) 

Utah  (each  child)     .... 

Vermont 

Virginia 

Washington 

West  Virginia 

Wisconsin      .     .       No  money 

Wyoming 

No  homestead  law. 


^,000 

500 

1,000 

1,000 

1.000 

1,000 

5,000 

1,000 

limit 

1,000 

5,000 

1,000 

5,000 

limit 

1,000 

500 

250 

500 

2.000 

1,000 

1,000 

limit 

1,500 


CHAPTER  YIII. 


EXEMPT  BUSINESS  PLACES. 


§  1.  Appurtenances. 

8.  Business  Houses  Not  Appurte- 
nant. 

3.  Dwelling   and  Business  Houses 

as  One  Homestead  Within  the 
Maximum. 

4.  Means  of  Family  Support 

5.  Dual  Homesteads  —  "  Business 

Homesteads." 


§  6.  Dual     and    "  Business    Home- 
steads." 

7.  "  Business  Homesteads  "  —  In- 

crease of  Exemption. 

8.  Alternate  Homesteads. 

9.  Business  Uses  as  Indicia. 
10.  Several  Business  Callings. 


§  1.  Appurtenances. 

The  exemption  of  a  homestead  generaMy  includes  the  ap- 
purtenances of  the  family  dwelling.  These  are  not  confined 
to  barns,  stables  and  the  other  usual  out-buildings,  but  may 
include  the  shop  of  an  artisan,  the  studio  of  an  artist,  the  of- 
fice of  a  doctor  or  lawyer,  or  any  like  appendage,  used  by  the 
head  of  the  family  in  pursuing  his  personal  calling.  Such 
shop  or  office  is  required  to  be  on  the  homestead  premises, 
and  included  within  the  limitations  prescribed  to  them  as  to 
value  and  extent.^ 

Shops  rented  to  tenants  are  not  protected  as  appurtenances 
of  the  lessor's  homestead,  though  on  the  home  lot;  ^  and  a  sa- 
loon for  the  sale  of  intoxicating  liquors  was  held  not  exempt, 
though  it  was  part  of  the  dwelling-house.*  A  house  solely  used 
as  a  hotel  is  not  a  homestead.* 


I  Orr  V.  Shraft,  22  Mich.  260 ;  Hub- 
bell  V.  Canaday,  58  111.  427 ;  Wright 
V.  Ditzler,  54  la.  620 ;  Smith  v.  Quig- 
gans,  65  la.  637 ;  West  River  Bank  v. 
Gale,  42  Vt.  27;  Mercier  v.  Chace,  11 
Allen.  194 ;  Lazell  v.  Lazell,  8  Allen, 
576 :  Clark  v.  Shannon,  1  Nev.  568 ; 
Skinner  v.  Hall,  69  Cal.  195;  Orn- 
baum  V.  His  Creditors,  61  Cal.  457; 
Englebrecht  v.  Shade,  47  Cal.  628; 
Estate  of  Delaney,  37  Cal.  176 ;  Re 
Tertelling,  2  Dill.  339;  Pry  or  v.  Stone, 


19  Tex.  371 ;  Wassell  v.  Tunnah,  25 
Ark.  101 ;  Kelly  v.  Baker,  10  Minn. 
124 ;  Sumner  v.  Sawtelle,  8  Minn. 
272  ;  Tillotson  v.  Millard,  7  Minn.  419 ; 
Ward  V.  Hughu,  16  Minn.  159;  Kre- 
sin  V.  Mau,  15  Minn.  116;  Piper  v. 
Johnston,  12  Minn.  60. 

2  Kurz  V.  Brusch,  13  la.  371. 

3  Arnold   v.   Gotshall,   71   la  572; 
McClure  v.  Braniff,  75  la.  38,  43. 

*  Green  v.  Pearce,  60  Wis.  372. 


APPURTENANCES. 


233 


The  rule  is  that  a  mechanical  or  business  or  other  append- 
age must  be  merely  incidental  to  the  home  purpose.  This 
rule  will  be  recognized  under  the  prevalent  system  of  home- 
stead. It  will  not  be  respected  under  exceptional  methods  of 
a  few  states.  Wherever  homestead,  so  called,  is  nothing  more 
than  exemjition  to  a  specified  amount  in  value  of  realty,  this 
rule  will  be  found  inapplicable.  AVhere  a  factory,  storehouse, 
block  of  stores,  mills,  and  the  like,  are  claimed  as  appendages 
of  the  messuage  —  not  exempt  by  statute  under  their  proper 
business  names,  but  by  construction,  under  the  general  name 
of  homestead  —  the  adjunct  is  often  far  more  valuable  than 
that  to  which  it  is  attached. 

If  a  lot  is  not  appurtenant  to  the  family  residence,  but  sev- 
eral squares  away  from  it,  it  constitutes  no  part  of  the  home- 
stead, though  used  for  family  purposes.' 


1  Achilles  v.  Willis,  81  Tex.  160 ;  16  S. 
W.  Rep. 746.  Gaiues,  J. :  "This  action 
was  brought  by  appellants  to  restrain 
the  appellees  from  selling  two  lots  or 
parcels  of  land  in  the  citj^  of  Aus- 
tin, under  execution.  The  plaintiffs 
claimed  that  the  lots  constitute  their 
homestead,  and  that  therefore  they 
were  exempt  from  forced  sale.  On  one 
of  the  parcels  known  as  '  Lot  12,'  in 
block  19,  was  situated  a  d^-elling- 
house ;  and  the  other,  called  the  '  La- 
vaca-Street  Property,'  war,  distant 
Bome  three  or  four  blocks  from  the 
former,  and  had  upon  it  a  butcher's 
shop  and  a  part  of  a  stable.  The  in- 
junction was  dissolved  as  to  the  lat- 
tei",  but  was  perpetuated  as  to  the 
former,  lot.  The  appellees  have  not 
assigned  errors,  and  therefore  the  sole 
question  before  us  is  whether  or  not 
the  court  erred  in  holding  the  La- 
vaca-street  lot  subject  to  forced  sale. 
The  plaintiff,  Andreas  Achilles,  testi- 
fied that  he  bought  lot  12,  in  block 
19,  as  a  residence  for  his  family  in 
1886,  and  that  they  moved  vipon  the 
lot.  and  made  their  home  there  for 
some  three  or  four  months ;  that  he 
then  rented  the  property,  and  made 


his  family  residence  in  the  second 
story  of  a  house  leased  by  him,  and 
used  as  a  place  of  business,  but  that 
he  never  intended  to  abandon  lot  12 
as  his  homestead.  He  also  testified 
that  in  18S7  he  bought  the  Lavaca- 
street  lot,  which  was  on  the  opposite 
side  of  the  street  from  his  business 
house.  He  also  testified  'that  he  used 
this  property  as  a  wood-yard  till  he 
failed,  in  December,  1887;  that  in 
January,  1888,  his  brother,  A.  H. 
Achilles,  bought  the  stock  of  goods 
from  his  trustee,  and  run  the  busi- 
ness, including  the  wood-yard  busi- 
ness, up  to  March  31,  1890,  till  after 
the  levy ;  that  during  that  time  he 
clerked  for  his  brother  and  liad  no 
interest  in  the  business ;  .  .  .  that 
the  Lavaca-street  lot  has  a  stable  on 
it,  half  of  the  stable  being  on  his  lot, 
and  the  other  half  on  the  adjoining 
lot ;  that  the  middle  of  the  stable  is 
his  line,  and  that  the  stable  runs 
back  east  seventy -six  feet ;  that  the 
stable  is  about  thirty  feet  wide ;  that 
there  is  a  bedroom  in  the  corner  of 
the  stable  on  his  part  about  eight  feet 
square ;  that  there  is  a  butcher  shop 
in  the  south-west  corner  of  his  lot 


234: 


EXEMPT   BUSINESS    PLACES. 


Where  two  lots  adjoined  each  other,  and  one  and  a  part  of 
the  other  were  occupied  as  the  family  home  of  the  house- 
holder, and  both  were  within  the  monetary  limitation,  a  por- 
tion of  the  second  lot  was  held  liable  to  execution  for  debt, 
because  it  was  devoted  to  business  purposes.  The  householder 
pursued  thereon  his  business  calling  of  wagon-building  and 
general  blacksmithing.  The  test  applied  was  that  of  princi- 
pal use ;  and  it  was  found  that  the  ])ortion  of  the  second  lot 
whose  status  was  in  question  was  principally  devoted  to  busi- 
ness uses.  Had  the  question  of  liability  been  with  reference 
to  the  whole   property  —  both  lots  —  it  might   have   been 


about  twenty  and  one-half  by  four- 
teen and  one-half  feet,  and  a  shed- 
room  to  it,  fourteen  and  one-half 
feet  by  eight  feet ;  that  the  shop  and 
shed-room  buildings  do  not  belong  to 
him;  that  they  belong  to  August 
Hoecke,  and  were  there  when  he 
bought  the  property,  and  were  rented, 
and  that  since  he  bought  he  has 
rented  the  ground  covered  by  them, 
and  received  ground-rent,  $5,  up  to 
about  January  1,  1890,  and  that  since 
that  time  Hoecke  has  occupied  it,  but 
paid  him  no  rent,  but  a  little  meat ; 
that  he  was  using  the  stable  for  his 
cow  and  horses  and  wagon  and  feed 
at  the  time  he  failed,  and  has  used  it 
ever  since  in  the  same  way ;  that  the 
stalls  in  which  he  keeps  his  horses 
and  cow  are  on  the  north  side  of  the 
stable,  on  the  other  lot,  and  the  bins 
where  he  keeps  his  feed  are  on  tiie 
south  side,  and  on  his  lot,  and  the 
bedroom  is  on  the  south  side ;  that 
all  the  lot,  except  the  part  covered 
by  the  stable  and  shop  and  shed,  is 
what  has  been  used  for  a  wood-yard.' 
He  also  testified  '  tliat  he  bought  this 
lot  for  the  purpose  of  using  the  same 
in  connection  with  his  homestead  on 
lot  12,  in  block  19,  and  that  since  he 
purchased  it  he  has  been  keeping  his 
horses  and  cow  therein,  with  feed  for 
them,  and  his  lire-wood,  chickens, 
etc.,  and  used  the  lot  as  a  yard  to 


wash  the  family  clothing.'  No  other 
witness  testified  with  reference  to 
this  matter.  It  may  be  doubted 
whether  the  testimony  discloses  such 
use  of  the  lot  as  would  entitle  it  to 
be  exempt  from  forced  sale.  A  part 
was  rented,  and  the  open  space  seems 
to  have  been  mainly  used  as  a  place 
to  deposit  wood  kept  in  connection 
with  plaintiff's  business.  But  con- 
ceding, for  the  sake  of  the  argument, 
that  such  use  was  shown,  does  it  fol- 
low that  it  would  not  be  subject  to 
sale  under  execution?  The  head  of 
a  family  is  not  entitled  to  two  resi- 
dence homesteads.  He  is  entitled  to 
one,  which  may  consist  of  two  or 
more  detached  lots.  The  nucleus 
must  be  the  lot  upon  which  the  dwell- 
ing is  situated.  This  lot  will  draw  to 
it  such  others  as  may  be  conveniently 
near  to  it,  and  may  be  used  in  con- 
nection with  it  for  the  comfort  and 
convenience  of  the  family.  The 
plaintiffs  established  in  this  case  that 
lot  13  was  their  homestead  proper. 
They  failed  to  show  that  the  lot  in 
question  had  ever  been  used  in  con- 
nection with  it  for  home  purposes. 
The  court  below  held  that,  under 
these  circumstances,  it  had  never  be- 
come a  part  of  the  homestead,  and 
we  are  not  prepared  to  say  that  this 
conclusion  was  not  correct.  The 
judgment  is  therefore  affirmed." 


BUSINESS    HOUSES    NOT    AITUKTENANT.  235 

thought  that  the  principal  use  was  that  of  a  home;  and  this 
view  would  have  accorded  with  decisions  in  several  states. 

The  court,  however,  separated  the  first  lot  and  the  part  of 
the  second,  on  which  tlie  dwelling-house  and  a})j)urtenances 
were  situated,  from  the  rest,  and  held  the  latter  liable,  (|uot- 
ing  approvingly  from  a  prior  decision:  "  It  is  the  princi])al 
use  to  which  the  property  is  put,  and  not  quantity,  which  fur- 
nishes the  test  in  determining  the  question  whether  or  not 
property  is  subject  to  dedication  as  a  homestead.  And  if 
only  a  part  of  the  land  described  in  the  homestead  declaration 
be  actually  used  and  appropriated  as  the  home  of  the  family, 
the  remainder  not  so  used  and  appropriated  forms  no  part  of 
the  homestead  claim  in  the  sense  of  the  statute."  • 

The  court  applied  the  general  rule  that  property  cannot  be 
impressed  with  the  character  of  a  homestead  unless  actually 
occupied  by  the  householder  and  his  family  as  their  home 
residence.^ 

§  2.  Business  Houses  Not  Appurtenant. 

The  construction,  given  to  the  statute  of  the  state  whence 
the  cases  are  cited  in  the  last  two  notes,  is  that  the  home- 
stead embraces  only  the  dwelling-house  and  appurtenant  out- 
buildings and  land  constituting  the  family  home,  and  not 
disconnected  establishments  used  for  business  or  other  pur- 
poses; that  the  purpose  of  the  legislator  is  to  exempt  the 
home,  and  not  necessarily  property  to  the  possible  inaxiinum 
value  — five  thousand  dollars.  What  maybe  considered  the 
leading  case  on  this  point  ^  was  rendered  under  a  statute  since 
modified,  but  which  has  been  literally  copied  in  another  state,* 
and  there  differently  construed,"  The  case  last  cited  from  the 
former  state  was  discussed  but  not  followed.    It  was  expressly 

1  In  re  Allen,  78  Cal.  293 ;  Maloney  Cal.  286 ;  Aucker  v.  McCoy,  56  Cal. 

V.  Hef er.  75  Cal.  422 ;  Gregg  v.  Bost-  526 ;    Dorn  v.   Howe,   52    Cal.   630 ; 

wick,  33  Cal.  220 ;  S.  C,  91  Am.  Dec.  Babcock  v.  Gibbs,  52  Cal.  629 ;  Pres- 

637 ;  Ackley  v.  Chamberlain,  16  Cal.  cott  v.  Prescott,  45  Cal.  58 ;  Mann  v. 

182 ;  S.  C,  76  Am.  Dec.  516.  Rogers,  35  Cal.  319. 

i  In  re   Noah,   73  Cal.   590 ;  In  re  3  Gregg  v.  Bostwick,  33  Cal.  220. 

Crowey.  71  Cal.  300 ;  Skinner  v.  Hall,  ^  Nevada,  Act  of  1865. 

09  Cal.  195  ;  Pfister  v.  Dascey,  68  Cal.  5  Smith  v.  Stewart,  13  Nev.  65.    See 

572 ;    Laughlin    v.   Wright,   63  Cal.  Goldman  v.  Clark,  1  Nev.  516. 
113;    Tiernan    v.   His  Creditors,   62 


236  EXEMPT    BUSINESS    PLACES. 

stated  that  the  decision  in  that  case  was  rendered  when  the 
statute  of  its  state  was  precisely  like  the  one  under  construc- 
tion, yet  it  was  held  that  a  dwelling-house,  two  store  build- 
ings used  in  merchandising,  and  a  store-house  used  for  storing 
goods,  all  separate  from  each  other,  but  all  standing  upon  one 
piece  of  ground,  were  exempt  as  a  homestead.  It  was  further 
held  that  the  statute  exempts  a  tract  of  land  on  which  the 
homestead  is  located,  to  the  extent  of  five  thousand  dollars  in 
value,  and  allows  it  to  be  used  in  any  way,  for  any  business 
or  calling,  provided  it  is  the  site  of  the  homestead  and  used 
and  claimed  as  the  family  home. 

It  had  previously  been  held  in  a  case  with  which  the  last 
one  cited  is  in  accord  (though  rendered  under  a  prior  and 
somewdiat  different  statute),  that  the  owner  of  two  lots,  who 
lived  on  one  and  had  a  public  livery-stable  on  the  other,  and 
who  had  mortgaged  the  latter  to  secure  his  note,  was  entitled 
to  hold  both  lots  and  their  improvements  exempt  as  his  home- 
stead. He  was  relieved  from  his  mortgage  because  his  wife 
had  not  joined  in  its  execution.  The  court  said  the  debtor 
has  the  privilege  of  selecting  any  land  included  in  the  home- 
stead tract,  provided  it  does  not  exceed  five  thousand  dollars 
in  value,  and  that  he  is  not  limited  in  the  uses  to  which  it 
may  be  applied.^     This  is  exemption,  but  not  homestead. 

This  decision,  under  a  former  statute,  was  followed ;  and 
that  of  a  neighboring  state,  under  a  statute  from  which  the 
present  one  was  copied,  was  not  followed.  None  of  the  stat- 
utes, however,  gave  warrant  for  treating  business  establish- 
ments as  homesteads,  or  as  parts  of  homesteads.  The  one 
which  was  alike  in  the  two  states,  and  still  in  force  in  the  lat- 
ter, is  as  follows,  with  respect  to  the  part  construed : 

"The  liomestead^  consisting  of  a  quantity  of  land,  together 
with  the  dwellirig-hoiise  thereon  and  its  apj)'U'>^te7iances,  not  ex- 
ceeding in  value  five  thousand  dollars,  to  be  selected  by  the 
husband  and  wife,  or  either  of  them,  or  other  head  of  a  fam- 
ily, shall  not  be  subject  to  forced  sale  on  execution,  or  any 
final  process  from  any  court,  for  any  debt  or  liabilitj'^  con- 
tracted or  incurred  after  November  13,  1801,  except  process 
to  enforce  the  payment  of  purchase-money.     .     .     . 

1  Clark  V.  Shannon,  1  Nev.  477 ;  Nev.,  Act  of  1861,  g§  4-7. 


BUSINESS    nOUSKS    NOT    APPUKTENANT.  237 

"Said  selection  shall  be  made  by  either  the  husband  or 
wife  or  both  of  them,  or  other  head  of  a  family,  declarins: 
their  intention  in  writing  to  claim  tlie  same  as  a  homestead. 
Said  declaration  shall  state  .  .  .  that  they  .  .  .  are, 
at  the  time  of  inaking  such  declaration,  residing  with  their 
family^  or  with  the  person  or  persons  under  their  care  and 
Tnaintenance^on  the  premises^  particularly  describing  said  prem- 
ises, and  that  it  is  their  intention  to  use  and  claim  the  same 
as  a  homestead^     .     .     } 

There  is  a  provision  that  when  indivisible  property  includ- 
ing the  homestead  shall  be  subject  to  execution,  five  thousand 
dollars  shall  be  reserved  to  the  debtor  from  the  proceeds.^ 

By  simple  inspection,  the  professional  reader  will  see  that 
there  is  nothing  exempted  but  the  homestead.  Its  appurte- 
nances are  a  part  of  it,  and  consist  only  of  out-buildings  and 
such  other  things  as  are  usual,  and  necessary  to  the  purposes 
of  the  famil3^  There  is  nothing  further  exempted  by  express 
provision.  To  find  anything  further  implied  would  tax  the 
keenest  ingenuity. 

"Whether  we  take  the  word  homestead  as  used  in  common 
parlance,  or  in  its  technical  sense,  we  shall  be  unable  to  ex- 
tend its  meaning  so  as  to'  include  anything  more  than  the 
family  residence  and  its  auxiliary  appendages  for  domestic 
use,  and  the  land  belonging  to  the  home,  all  constituting  the 
premises  repeatedly  mentioned  in  the  statute. 

In  common  language,  no  one  would  point  to  a  merchant's 
business  house,  or  to  a  public  livery  establishment,  and  say : 
"  That  is  my  friend's  homestead ;  that  is  his  family  residence." 
In  legal  language,  no  one  would  seriously  say,  pointing  to 
such  a  house:  "  That  is  a  homestead  where  the  owner  resides 
with  his  family  as  the  statute  requires." 

There  is  not  a  word  or  an  implication  in  the  statute  which 
favors,  in  the  slightest  degree,  the  exemption  of  a  business 
establishment.  There  is  nothing  which  entitles  the  benficiary 
to  the  maximum  of  the  monetary  limitation,  when  his  family 
residence  and  appurtenances  and  the  land  with  it  are  worth 
less.  When  worth  more,  and  not  susceptible  of  being  set  apart, 
its  owner  may  have  the  maximmn  from  the  proceeds,  after 

1  Gen.  Stat  Nev.  1885,  §  539,  from        2  Ih.,  §  541. 
the  Act  of  1865,  above  noticed. 


238  EXEMPT    nUSINKSS    PLACES. 

execution.  But  this  does  not  furnish  any  implication  that  a 
homestead  worth  less  tlian  tliat  sum  may  be  eked  out  with 
buildings  not  used  as  homestead  —  not  occupied  as  such  by 
the  family  according  to  the  statute. 

There  is  no  room  for  construction,  either  strict  or  liberal, 
since  there  is  no  ambiguity,  and  the  meaning  of  the  legislator 
is  plainly  expressed,  leaving  nothing  for  the  court  to  do  but 
to  follow  the  statute. 

In  the  state  where  this  construction  was  given,  the  profession. 
will  recognize  the  force  of  stare  decisis,  and  take  the  law  as 
expounded  by  the  court.  But  as  the  same  statute  has  been 
followed  in  another  state,  where  it  originated,  without  any 
interpolations  by  construction,  what  is  the  profession  to  un- 
derstand in  the  other  homestead  states  which  have  each 
authorized  one  homestead  and  required  its  occupancy  by  the 
family  of  the  householder?  It  would  seem  that  they  ought 
not  to  give  the  construction,  and  its  reasons,  any  extraterri- 
torial influence.  Especially  would  it  seem  so,  when  the  views 
of  the  supreme  courts  of  the  two  states  are  conflicting,  so  that 
both  cannot  be  accepted  as  law  throughout  the  country.^ 

§  3.  Dwelling  and  Business  Houses  as  One  Homestead 
Within  the  Maximum. 

In  one  of  the  cases  above  cited,-  it  was  held  that  the  mort- 
gage of  a  public  livery-stable  by  the  owner  without  his  wife's 
joinder  was  null  and  void  and  did  not  estop  him  from  claim- 
ing the  property  subsequently  as  exempt  under  the  law  ex- 
empting homesteads.  It  was  said,  by  way  of  reasoning,  that 
the  statute  exempted  five  thousand  dollars'  worth  of  prop- 
erty, though  no  part  of  it  was  pointed  out  to  show  that  the 
homestead  must  reach  the  maximum,  and  the  reader  will  look 
in  vain  to  find  it. 

This  is  not  recognized  as  law  in  another  state  where  the 
limitation  of  exemption  is  the  same,  and  the  phraseology  of 
the  provision,  on  this  subject,  substantially  the  same. 

'  Even  in  Nevada,  in  cases  where  exempt.     Lachman    v.    Walker,    15 

business  places  are    not    drawn    in  Nev.  422 ;  Child  v.  Singleton,  15  Nev. 

question,  the  decisions  recognize  that  461  ;  Smith  v.  Shrieves,  13  Nev.  303; 

it  is  the  home  of  the  family,  occu-  Estate  of  Walley,  11  Nev.  264;  Bank 

pied  as  such,  which  is  to  be  declared  of  San  Jose  v.  Corbett,  5  Saw.  547. 

upon  and  recorded,  that  it  may  be  ^  Clark  v.  Shannon,  1  Nev.  477. 


DWELLING    AND    BUSINESS    HOUSES    AS    ONE    HOMESTEAIi.       230 

On  the  contraiy,  it  is  held  that  "  the  resident  may  make  his 
homestead  as  small  as  he  pleases,  provided  it  be  not  so  con- 
tracted as  to  show  an  intent  to  evade  the  law,  by  makinf^  it 
too  small  for  actual  use  as  a  homestead."  Th's  was  held  under 
a  constitutional  exemption  of  "any  lot  in  any  city,  town  or 
village,  with  the  dwelling  and  appurtenances  thereon,  owned 
and  occupied  by  any  resident  of  this  state,  and  not  exceeding 
in  value  five  thousand  dollars  "...  which  should  "  not 
be  incumbered  in  any  manner  w^hile  owned  by  him." 

Besides  his  homestead,  the  householder  had  a  brewery  which 
he  alone  mortgaged,  declaring  in  the  instrument  that  it  was 
not  a  part  of.  his  homestead.  Afterwards  he  sought  to  hold 
it,  and  his  dwelling  too,  as  exempt  —  both  within  the  limit  — 
then  five  thousand  dollars.  He  discordantly  meant  to  keep 
the  money  he  had  obtained  by  the  mortgage  and  repudiate 
the  mortgage,  as  the  mortgagor  in  the  other  case  successfully 
did.  But  ihe  court  denied  him  such  double-dealing,  declared 
that  there  was  no  homestead  niinimuyn  of  value  fixed  by  law, 
and  recognized  his  right  to  dispose  of  his  brewery  without 
his  wife's  joinder,  as  it  was  a  business  establishment  consti- 
tuting no  part  of  his  messuage.^ 

Where  the  wife  is  a  beneficiary  to  the  highest  amount  of 
the  exemption  if  the  homestead  is  worth  so  much  (as  she  gen- 
erally is),  her  husband  alone  cannot  mortgage  or  sell  any  part 
of  it  without  her  consent.  But  a  commercial  building,  a 
brewery  or  other  business  edifice,  is  not  a  part  of  the  home- 
stead, and  does  not  become  such  when  the  family  residence 
and  its  land  and  appurtenances  fall  below  the  extreme  allow- 
ance. If  not  a  part  of  the  homestead,  the  husband  alone 
may  mortgage  it.  Any  question  concerning  the  restraint  of 
his  jtis  disponendi  must  be  strictly  construed. 

A  different  view  of  the  homestead  grant  has  been  taken. 
The  law  having  authorized  the  exemption  of  a  limited  quan- 
tity of  land  with  the  dwelling  occupied  by  the  beneficiary,  it 
was  argued :  "  JSTo  limitations  were  imposed  by  the  legislature 
upon  the  use  which  should  be  made  of  the  homestead  of 
eighty  acres,  or  of  one  lot,  provided  only  it  was  a  dwelling 

iKleukv.Knoble,  37 Ark.  39a  302-7;  ney,  23  Ark.  400;  Frits  v.  Frits,  33 
Ark.  Const,  of  1868,  art.  12,  §§  3,  3,  Ark.  327;  Lindsay  v.  Norrill,  36  Ark. 
since  superseded ;  Tumlinson  v.  Svvin-    545. 


240  KXKMPT    BUSINESS    I'LACICS. 

place  of  tlie  party  claiming  the  exemption:"  therefore,  "  as 
to  the  balance,  beyond  what  was  required  for  the  site  of  his 
house,  the  claimant  seems  to  have  been  left  free  to  allow  it  to 
remain  uninclosed,  unimproved,  vacant  and  idle,  or  to  devote  it 
to  any  use  which  he  mUjht  ohooseP ' 

§  4.  Means  of  Family  Support. 

The  scope  of  the  exemption  of  the  homestead  has  been  en- 
larged by  construction  so  as  to  include  the  beneficiary's 
"  usual  means  of  employment  for  the  support  of  his  family." 
In  illustration  it  was  said  that  a  mill-owner,  who  has  a  farm 
attached  to  his  mill,  can  hold  both  his  residence  and  mill  ex- 
empt, but  not  the  farm,  if  his  cultivation  of  it  is  a  business 
secondary  to  milling.  This  ruling  was  with  reference  to  a 
rural  homestead  allowed  by  statute  to  consist  of  not  more  than 
one  hundred  and  sixty  acres.  Only  such  portion  of  the  tract 
as  was  ancillary  to  the  business  of  lumbering,  in  connection 
with  the  saw-mill,  w^as  decided  to  belong  to  the  homestead,  and 
to  be  exempt. 

Justice  Bradley,  in  delivering  the  opinion,  said,  of  his  own 
exposition:  "The  amount  of  property  which  the  necessary  in- 
terpretation of  the  exemption  will  sometimes  embrace  will 
undoubtedly  appear  as  a  great  hardship  and  injustice  to  cred- 
itors. It  is  a  great  stride  from  the  state  of  things  in  which 
the  sanctity  of  a  debt  induced  the  legislature  not  only  to  take 
from  the  debtor  all  his  property,  but  even  his  liberty  itself. 
It  may  be  a  question  whether  it  is  not  carrying  the  principle 
of  exemption  too  far  for  the  public  welfare.  It  is  true  that 
the  farmer  without  his  farm,  ihe  blacksmith  without  his  forge, 
the  miller  without  his  mill,  the  trader  or  business  man  with- 
out his  shop,  in  fine,  any  citizen  without  his  place  to  work  and 
labor  or  pursue  his  ordinary  calling,  is  deprived  of  the  power 
to  support  himself  and  his  family,  and  becomes  a  burden  in- 
stead of  a  help  to  the  community.  These  establishments  or 
places  of  labor  or  occu])ation  are  respectively  adjuncts  of  a 
man's  homestead,  and,  within  the  intent  and  meaning  of  the 
constitution,-  form  a  part  of  it.     Whether  the  provision  is 

'Kelly  V.    Baker,   10    Minn.    134;     Contra:    Casselman   v.   Packard,  16 
Palmer   v.  Hawes  (Wis.),  50  N.  W.     Wis.  115. 
341 ;  Baker  v.  The  State,  17  Fla.  406.        ^  Of  Florida, 


MEANS  OF  FAMILY  SUPPORT, 


241 


politic  or  impolitic,  is  a  question  with  which  the  courts  are 
not  concerned.  .  .  .  The  mill,  in  the  sense  of  the  consti- 
tution, is  appurtenant  to,  and  part  of,  the  debtor's  homestead. 
If  it  be  objected  that  the  value  is  unreasonably  great,  we  an- 
swer that  the  constitution  prescribes  no  limit  of  value  and  the 
courts  cannot  prescribe  one."  ^ 

Considered  as  means  of  family  support,  are  homestead  crops 
exempt?  Distinction  should  be  made  between  crops  grow- 
ing on  a  homestead  and  those  which  have  been  gathered  and 
thus  separated  from  the  soil.  While  the  former  take  the 
character  of  the  land  as  to  exemption,'^  the  latter  do  not.^ 
The  non-exemption  of  gathered  crops  is  not,  however,  uni- 
versally recognized,*  And  even  though  crops  be  exempt,  it 
is  too  late  to  claim  the  benefit  after  they  or  their  proceeds 
have  been  surrendered  to  creditors,''  Crops  are  the  produce 
of  the  homestead  soil.  What  is  produced  by  the  householder's 
skill,  without  the  aid  of  the  soil,  is  not  exempt.'' 

A  man  and  wife  having  joined  in  giving  a  deed  of  trust  on 
their  homestead  and  their  cotton  crop,  the  husband  was  sus- 


>  Greely  v,  Scott,  2  Woods,  657,  660. 

2  Alexander  v.  Holt,  59  Tex,  205. 
Questioned:  Sloan  v.  Price,  84  Ga,  172. 

sCoates  v,  Caldwell,  71  Tex.  19; 
Lee  V,  Welborne,  71  Tex,  500 ;  Hor- 
gan  V.  Amick,  62  Cal.  401 ;  Bank  v. 
Green,  78  N.  C.  247. 

^  Marshall  v.  Cook,  46  Ga.  301; 
Wade  V.  Weslow,  62  Ga.  562. 

5  A  head  of  family,  having  a  home- 
stead, voluntarily  paid  to  the  sheriff 
proceeds  of  cotton  raised  on  it 
towards  satisfying  a  judgment 
against  him  and  others.  Afterwards 
a  rule  was  taken  to  distribute  the 
money  so  as  to  have  it  applied  also 
to  another  judgment.  It  was  too 
late  for  him  to  recall  it  after  the 
sheriff  had  already  paid  it  over. 
Cloud  V.  Kendrick,  82  Ga.  730.  A 
crop  raised  by  the  debtor,  by  use  of 
exempted  property  and  his  own 
labor,  cannot  be  subjected  to  execu- 
tion in  Georgia  for  prior  debts.  Kup- 
ferman  v.  Buckholts,  73  Ga.  778; 
16 


Wade  V.  Weslow,  62  Ga.  562 ;  John- 
son v.  Franklin,  63  Ga.  378. 

«The  Georgia  Code,  §  2026,  ex- 
empts from  levy  and  sale  (except  as 
provided  for  in  the  constitution), 
"all  produce,  rents  or  profits  arising 
from  homesteads  in  this  state."  Ex- 
pounded :  "To  be  exempt  they  must 
have  been  '  produce,  rents  or  profits ' 
arising  directly  from  the  use  of  the 
homestead  or  exempted  property, 
such  as  crops  and  rents  .  .  .  :  " 
so  "debts  due  a  physician,  in  the 
earning  of  which  his  skill  was  the 
principal  factor;  and  the  use  of  a 
.  .  .  house  set  apart  as  a  home- 
stead ;  and  riding  an  exempted  horse 
in  paying  his  physician's  calls,  were 
mere  incidents ;  "  the  debts  "  were 
not  exempt  from  garnishment.  .  .  ." 
Staples  V.  Keister,  81  Ga.  772,  in 
which  Wade  v.  Weslow,  62  Ga,  562 ; 
Johnson  v.  Franklin,  63  Ga.  378; 
Kupferman  v.  Buckholts,  73  Ga.  778, 
are  distinguished. 


242  EXEMPT    BUSINESS    PLACES. 

tainecl  in  using  the  cotton  to  pay  a  creditor  other  than  the 
holder  of  tlie  deed ;  and  it  was  held  that  his  wife  could  not 
prevent  such  disposition  of  it  on  the  ground  that  it  should 
have  been  applied  to  the  payment  of  the  debt  secured  by  the 
deed  of  trust.'  It  would  seem  that  the  creditor,  holding  the 
deed  of  trust,  had  just  right  to  complain  of  the  application  of 
the  crop  to  the  payment  of  another  creditor. 

The  usufruct  of  homestead  property  is  not  exempt  because 
that  which  produces  it  is  so.  In  the  absence  of  any  law  cre- 
ating the  exemption,  the  income  of  such  property,  when  it 
has  taken  independent  form,  is  liable  to  the  creditor.^  Were 
a  different  rule  to  prevail,  the  income  "  could  be  capitalized 
and  recapitalized  from  that  one  nucleus  to  the  building  up 
of  collossal  fortunes  in  defiance  of  debts  past  and  future. 
And  what  a  door  would  be  opened  to  frauds  and  perjuries, 
as  each  owner  of  a  homestead  would  be  tempted  to  allege  and 
establish  that  all  his  estate,  no  difference  how  acquired,  was 
but  the  increment  of  his  own,  or  the  homestead  of  some  re- 
mote ancestor !  "  ^ 

When  u))on  the  death  of  their  father  his  homestead  land 
belongs  to  his  children,  the  rent  which  falls  due  after  the  death 
is  not  a  part  of  his  estate.  It  belongs  to  the  children  and  is 
not  liable  for  his  debts.'  The  owner  of  the  reversion  is  enti- 
tled to  rents  falling  due  after  it  has  become  vested.^ 

§  5.  Dual  Homesteads  —  *^*  Business  Homesteads." 

Under  the  constitutional  provision :  "  The  homestead  in  a 
city,  town  or  village  shall  consist  of  a  lot  or  lots,  not  exceed- 
ing in  value  five  thousand  dollars  at  the  time  of  the  desio^na- 
tion  of  the  homestead,  without  reference  to  the  value  of  any 
improvements  thereon ;  provided,  that  the  same  shall  be  used 
for  the  purpose  of  a  home,  or  as  a  place  of  exercising  the  call- 
ing or  business  of  the  head  of  a  family,"  ^  it  is  held  that  an 

1  Vaughn  v.  Powell,  65  Miss.  401.        Martin  v.  Martin,  7  Md.  376 ;  Story's 

2  Citizens'  National  Bank  v.  Green,     Eq.  475;  Wood's  Landlord  and  Ten- 
78  N.  C.  247.  ant,  476 ;  1  Wash.  Real  Prop.  127, 519 ; 

3  lb.  2  id.  289.     See  Linch  v.  Broad,  70  Tex. 
*  Porter  v.  Sweeney,  61  Tex.  213.         93,  and  cases  there  cited. 

5  Burden  v.   Thayer,    3    Mete.  76;        « Constitution  of  Texas,  1876,  art 
Bank   of  Pa.   v.  Wise,  3  Watts,  396 ;     XVI,  §  51. 


DUAL    HOMESTEADS "BUSINESS    HOMESTEADS."  243 

urban  homestead  may  embrace  one  lot  or  more  where  the 
householder  exercises  his  calling,  in  addition  to  the  lot  or  lots 
where  his  family  resides;  that  the  disjunctive  form  of  the 
proviso  must  be  construed  to  mean,  not  that  there  is  one  ex- 
empt property  which  must  be  used  either  as  a  home  or  as  a 
place  of  business,  but  that  there  may  be  two  properties, —  one 
for  residence  and  the  other  for  business ;  that  these  need  not 
be  contiguous  but  may  be  entirely  detached  from  each  other. 
A  different  construction,  said  the  court,  "  would  involve  us  in 
inextricable  difficulty,  or  lead  to  results  which  would  evidently 
contravene  the  object  sought  to  be  secured  by  the  constitution, 
as  is  manifest  when  considered  in  connection  with  the  previous 
legislation  and  decisions  of  this  court.  ,  .  .  When  it  be- 
came apparent  that  this  court  did  not  regard  the  place  of 
business  of  the  head  of  the  family,  if  entirely  distinct  and 
separate  from  their  home,  as  within  the  exemption  by  reason 
of  its  use,  then  there  Avas  an  enlargement  of  the  homestead 
exemption  as  we  find  it  in  the  present  constitution.  ...  If 
the  clause  in  the  proviso  had  been  connected  by  the  conjunc- 
tion and,  ...  it  would  have  had  an  entirely  different  ef- 
fect from  what  we  think  was  intended,  or  lead  to  absurd 
results.  In  that  case  there  would  have  been  no  exemption 
of  an  urban  homestead  unless  there  were  lots  used  for  both  a 
home  and  a  place  of  business."  ^ 

The  facts  of  the  case  in  which  this  construction  was  made 
were  as  follows :  Menke  was  a  merchant  who  resided  with  his 
family  on  two  lots  containing  his  dwelling-house,  a  garden,  a 
stable  and  the  usual  appendages  of  a  family  residence.  He 
had  a  storehouse  besides,  situated  on  two  lots  which  fronted 
the  court-house  square  of  the  town,  entirely  disconnected  from 
the  other  property.  Being  about  to  make  an  assignment  as 
an  insolvent,  he  erected  a  new  brick  store-house  on  his  business 
lots,  in  close  proximity  to  the  store  he  was  then  using,  moved 
his  goods  into  it,  and  employed  his  old  store-house  as  a  ware- 
house. As  all  four  of  the  lots,  minus  the  imjproi}enients,  did 
not  exceed  five  thousand  dollars  in  value  when  first  designated, 
all  were  held  exempt. 

The  homestead  with  its  appurtenances,  and  the  business  es- 

1  Miller  v.  Menke,  56  Tex.  539,  549. 


244  KXEMF'T    BUSINESS    I'LAOKS. 

tablishment  with  its  appurtenances  —  the  new  brick  store  and 
all  improvements  (however  much  the  property  was  enhanced 
in  value  by  the  improvements),  were  free  from  forced  sale  by 
creditors. 

The  court,  in  showing  that  there  may  be  two  exempt  estab- 
lishments —  one  a  homestead  and  the  other  a  business  place  — 
both,  though  not  necessarily  contiguous,  enjoyed  by  one  per- 
son—  said  that  the  home  may  be  abandoned  and  the  other 
retained,  or  vice  versa.  Ceasing  to  use  a  store  for  business 
purposes  would  be  abandonment  just  as  ceasing  to  live  in  the 
dwelling  would  be.  It  will  be  seen  that  one  of  the  conditions 
or  indicia  of  homestead  differs  in  the  two  cases.  Not  family 
occupancy  but  business  use  is  the  criterion  when  a  merchant 
claims  his  store-house,  or  the  manufacturer  claims  his  factory, 
as  exempt. 

Rural  homesteads,  consisting  not  only  of  family  dwellings 
but  the  land  on  which  farmers  pursue  their  calling,  must  be 
in  family  occupancy.  This  is  a  general  rule  which  is  still  ob- 
served where  separate  "  business  homesteads  "  (as  they  are 
paradoxically  called)  are  recognized  in  towns  without  this  re- 
quirement. 

If,  under  the  constitution  whose  construction  has  just  been 
noticed,  the  family  homestead  should  be  terminated  by  aban- 
donment, could  the  "  business  homestead  "  still  be  maintained 
by  use  for  the  support  of  the  family?  There  is  no  answer 
to  this  question  in  the  opinion  and  decision  making  the  con- 
struction, above  cited.  The  better  answer  would  be  in  the 
negative.  The  right  of  exemption  ought  not  to  continue 
after  the  home  has  been  broken  up,  since  the  policy  of  home- 
stead exemption  is  to  conserve  homes  for  the  good  of  society 
and  the  state  —  not  to  enrich  one  class  of  citizens  at  the  ex- 
pense of  another. 

The  exempt  business  establishment,  under  this  view,  would 
be  deemed  subordinate  to  the  protected  home,  dependent  upon 
it  for  a  right  to  exist,  appendant  to  it  as  means  for  supportr 
ing  the  family.  But  in  the  state  to  which  the  decision  above 
mentioned  applies,  the  constitution  makes  either  home-occu- 
pancy or  business-use  sufficient ;  at  least,  so  the  court  con- 
strued it.  But,  in  either  case,  the  benefit  is  confined  to  heads 
of  families. 


DUAL    HOMESTEADS —  "BUSINESS    HOMESTEADS."  245 

In  the  language  of  Judge  Walker,  in  a  case  following  that 
above  considered/  in  the  same  court,  speaking  of  the  constitu- 
tion of  1876 :  "  'Now,  for  the  first  time  in  our  history,  the  head 
of  a  family  may  possess  a  dual  homestead,  disjoined  and  iso- 
lated as  respects  locality  of  lots  and  houses  within  a  town  or 
city,  and  each  of  them  dedicated  to  distinct  uses.  The  one, 
domestic  —  the  hearth-stone  home;  the  other,  the  industrial 
home,  or  place  of  work  or  of  business  for  the  head  of  the 
family.  The  one,  his  '  vine  and  fig  tree ; '  the  refuge  of  the  family 
against  the  misery  and  desolation  which  the  homeless  know ; 
the  other,  a  sea-wall  uplifted  against  the  tide  and  waves  of 
poverty  and  disaster,  securing  to  him  a  spot  of  earth  where 
he,  and  his  family  after  him,  may  toil  and  earn  their  bread." 
This  duality  of  homestead  and  other  provisions  of  the  consti- 
tution are  declared  in  the  same  opinion  to  be  "  in  advance  of 
similar  benefactions  hitherto  extended  under  our  former  con- 
stitutions and  laws,  and  are  doubtless  far  in  advance,  in  the 
characteristics  named,  of  the  laws  of  any  people  on  the  globe." 

While  the  court  denies  that  the  object  is  to  afford  protec- 
tion to  the  capital  which  is  invested  in  business,  or  to  encour- 
age its  extension  and  increase,  it  admits  that  such  results  may 
ensue. 

The  point  of  the  decision,  how^ever,  is  that  there  cannot 
be  triplicate  homesteads.  A  druggist  had  his  exempt  do- 
mestic home  situated  on  two  acres  of  ground  in  the  town  of 
Hillsboro ;  his  drug-store,  on  other  lots,  situated  in  a  different 
part  of  the  town,  which  was  his  business  homestead ;  and  he 
claimed  another  lot  or  lots  where  his  warehouse  stood  de- 
tached from  the  store,  as  also  exempt. 

Tinder  the  section  of  the  constitution  already  quoted,  why 
not?  There  is  no  limitation  of  the  number  of  lots,  and  it 
had  long  been  the  law,  and  yet  is,  that  the  lots  need  not  be 
contiguous.  But  probably  the  court  wisely  saw  that  the  al- 
lowance of  triple  homesteads  would  soon  be  followed  by  claim 
for  quadruple  ones.  The  reason  assigned  for  holding  the 
warehouse  not  exempt  was  that  the  facts  did  not  show  that 
the  storing  of  goods  in  it  was  a  use  of  it  in  the  exercise  of 
the  druggist's  business.      Suppose  the  facts  had  shown  it? 

1  McDonald  v.  Campbell,  57  Tex.  614,  617-18. 


246  EXEMPT    iJlSINESS    PLACES. 

Suppose  they  had  shown  forty  different  houses  and  lots  so 
used  ? 

A  more  general  reason  given  is  as  follows :  "  Whilst  the  law 
means  to  allow  the  head  of  a  family,  exempt  from  execution, 
one  or  more  lots  where  he  may  exercise  his  vocation  and  con- 
duct his  business,  its  scope  is  not  intended  to  extend  so  far  as 
to  protect  from  execution  a  lot  or  lots  in  excess  of  the  lot  or 
lots  on  which  the  vocation  or  the  business  of  the  head  of  the 
family  is  followed,  even  though  such  extra  lots  might  be  actu- 
ally used  in  a  way  which  was  incidentally  useful  or  profitable 
to  the  business  which  was  being  followed."  ^ 

In  the  case  cited  just  before  this  one,  a  warehouse  was  held 
exempt,  though  not  differing  from  the  one  in  this  case  except 
that  it  was  on  a  lot  adjoining  the  store  held  exempt  as  a  busi- 
ness place  —  a  difference  not  material,  since  the  law  does  not 
require  that  lots  must  be  contiguous  in  order  to  be  exempt,  as 
has  been  already  remarked.  The  allowance  of  both  residen- 
tial and  business  homesteads  is  confined  to  one  state. 

§  6.  Dual  and  ^^  Business  Homesteads." 

As  this  new  departure  —  the  allowance  of  dual  homesteads  — 
is  important,  further  construction  of  the  section  under  consid- 
eration '^  should  be  noticed.  The  designation  therein  of  the 
business  homestead  as  "a  place  to  exercise  the  calling  or  busi- 
ness of  the  head  of  a  family  "  is  held  to  be  employed  in  a  very 
broad  sense.  The  words  callhig and  business  are  held  to  "em- 
brace every  legitimate  avocation  in  life  by  which  an  honest 
support  for  a  family  may  be  obtained.  The  former  was  proba- 
bly used  in  the  sense  of  'profession  '  or  'trade,'  which  would 
embrace  all  such  employments  as  by  course  of  study  or  ap- 
prenticeship in  any  of  the  learned  professions,  liberal  arts,  or 
mechanical  occupations,  a  person  has  acquired  skill  or  ability 
to  follow.-  .  .  .  The  latter  word  was  probably  used,  in 
contradistinction  to  the  other,  to  denote  .  .  .  'that  which 
occupies  the  time,  attention  and  labor  of  men  for  the  purpose 
of  profit  or  improvement.'  "  ^ 

An  illustration  is  found  in  a  later  case.     A  firm  consisting 

1  Id.,  p.  617.  3  Shryock  v.  Latimer,  57  Tex.  674 

2g  51,   art.  XVI,   Constitution  of 
Texas,  1876,  already  quoted. 


DUAL    AND    "  UUSINESS    HOMESTEADS."  247 

of  three  members,  owning  lots  not  exceeding  the  limitation  in 
value,  erected  thereon  a  factory  for  the  manufacture  of  cotton- 
gins.  In  connection  with  the  factory,  they  established  a  gen- 
eral mercantile  business.  One  member  took  charge  of  this, 
another  superintended  the  factory  in  which  many  operatives 
were  employed,  while  the  third  traveled  in  the  interest  of  the 
firm.     At  times,  each  had  worked  in  the  factory. 

The  point  was  made  by  counsel  that  as  the  firm,  manufact- 
urers of  gins,  had  in  their  employment  many  persons  and 
large  and  expensive  machinery,  such  a  place  of  business  was 
not,  in  legal  contemplation,  the  place  of  business  for  the  head 
of  a  family,  nor  was  such  machinery  to  be  considered  as  tools 
or  apparatus  of  trade,  and  that  therefore  the  machinery  was 
not  exempt. 

The  court  said  the  only  limitations,  by  the  constitution  of 
1876,  are  value  at  the  time  the  lots  were  designated,  and  use 
in  the  calling  or  business  of  the  head  of  a  family;  and  added: 
"Keither  the  value  of  the  improvements  placed  upon  it  [the 
ground],  nor  the  nature  and  extent  of  the  operations  carried 
on  there,  will  subject  it  to  forced  sale ;  and  all  the  machinery 
annexed  to  the  freehold  in  such  manner  and  under  such  cir- 
cumstances as  to  become  a  part  of  the  realty  would  follow 
the  title  of  the  freehold  and  be  exempt  with  it  as  parts  of  the 
homestead."  ^ 

One  of  the  partners  having  ceased  to  work  in  the  factory 
and  having  given  his  time  to  the  mercantile  establishment 
was  held  to  have  abandoned  the  business  homestead ;  but  the 
others  continued  and  enjoyed  protection  in  it,  though  each 
may  have  had  a  domestic  homestead  of  his  own,  in  addition. 

The  case  shows  that  under  the  coupled  terms,  calling  and 
business^  the  most  extensive  manufacturing  establishments 
may  claim  protection  from  creditors ;  that  the  most  costly 
machinery,  worth  ten  times  the  monetary  limitation  as  to  the 
value  of  the  ground,  is  protected  when  attached  to  the  realty ; 
and  that  not  individuals  alone,  but  firms  may  become  benefi- 
ciaries of  the  exemption  provision ;  and  that  abandonment  by 
one  member  of  a  firm  does  not  affect  the  rights  of  the  other 
members.     Corporations,  as  such,  have  not  been  held  capable 

1  Willis  V.  Morris.  66  Tex.  628 ;  Low  v.  Tandy,  70  Tex.  745. 


248  EXEMPT    BUSINESS    I'l.ACES. 

of  becoming  homestead  beneficiaries ;  they  cannot  even  have 
"  business  homesteads,"  since  they,  as  artificial  persons,  cannot 
be  heads  of  families.  They  may  be  included  among  benefi- 
ciaries, however,  at  the  next  advance  in  the  progress  of  home- 
stead exem|)tion. 

Partners,  having  their  office  in  a  large  building  of  which 
they  owned  a  fourth,  were  denied  their  claim  of  their  interest 
as  a  business  homestead,^  mainly  because  it  was  not  adapted 
to  their  particular  calling. 

The  proprietor  and  keeper  of  a  hotel  had  his  family  living 
with  him  in  the  establishment.  After  a  while  he  built  a  store- 
house, moved  with  his  family  into  the  rear  of  it,  and  conducted 
the  grocery  business  therein.  Later,  his  wife  carried  on  mil- 
linery in  the  front  part  of  the  store.  On  the  death  of  the 
husband,  his  wife  claimed  the  entire  property  —  hotel  and 
store  —  as  homestead.  She  succeeded.  But  when,  after- 
wards, she  quit  her  business  and  went  to  live  with  her  adult 
son  elsewhere,  taking  the  minor  children  with  her,  and  mort- 
gaged the  w^hole  property,  she  lost  the  homestead  privilege.^ 

The  two  establishments  were  treated  as  a  "  residence  home- 
stead "  and  a  "  business  homestead."  "  "We  think,"  the  court 
said,  "  both  pieces  of  property  were  homestead,  and  on  his 

iVan  Slyke  v.  Barrett  (Tex.),  16  not  be  pretended  in  this  case  that 
S.  W.  902.  The  court  said,  after  Curtis  &  Atkinson  were  using  the 
stating  the  facts :  "The  building  may  whole,  or  even  one-half,  of  their 
have  been  adapted  to  use  as  a  store  property  riglits  in  the  building.  They 
or  a  bank,  but  not  to  the  trade  of  were,  at  best,  sharing  with  another 
these  cattle  dealers.  Shryock  v.  Lat-  one  room  on  the  upper  floor  of  a 
imer,  57  Tex.  674.  The  laws  and  the  building,  in  which  they  had  a  one- 
constitution  will  not  force  a  home-  fourth  interest.  Could  it  be  said 
stead  out  of  every  interest  in  prop-  that  their  entire  interest  would  be 
erty  whether  it  suits  the  calling  or  exempt?  We  think  not.  The  law  of 
occupation  or  not.  Many  illustra-  homestead  rights  could  not  be  made 
tions  might  be  given  where  there  to  apply  to  such  a  case.  The  parties 
would  be  an  interest  in  a  building  have  brought  themselves  within  its 
and  a  calling  to  which  a  business  provisions.  This  being  our  view  of 
homestead  could  attach,  and  yet  it  the  case,  no  other  question  need  be 
might  be  impossible,  by  decree  of  the  considered.  The  judgment  of  the 
court,  to  set  apart  such  an  interest  as  lower  court  ought  to  be  reversed,  and 
a  homestead  for  the  business.  A  the  cause  remanded." 
person  claiming  the  benefit  of  the  law  -  Harle  v.  Richards  (Tex.),  14  S.  W. 
must  come  within  the  reach  of  the  257 ;  78  Tex.  80. 
law  to  secure  its  protection.     It  can- 


"  BUSINESS    HOMESTEADS  "  —  INOKEASE    OF    EXEMPTION.       249 

[the  owner's]  death,  descended  and  vested  one-half  in  the 
widow  and  the  other  half  in  the  children,  subject  to  the  right 
of  occupancy  by  the  widow  and  minor  children. 

"  To  entitle  the  store-house  to  protection  as  a  business  home- 
stead separate  from  a  residence,  the  head  of  the  family  must 
have  a  calling  or  business  to  which  the  property  is  adapted 
and  reasonably  necessary ;  and  such  property  must  be  used  as 
a  place  to  carry  on  the  calling  or  business  of  the  head  of  the 
family,  and  is  protected  so  long  as  so  used.^ 

"  When  the  widow  closed  her  millinery  business  and  ceased 
to  use  the  store-house  for  business  purposes  and  went  to  live 
with  her  son,  we  think  it  was  thereby  abandoned  and  divested 
of  its  homestead  character  and  became  liable  to  forced  sale 
for  debts  and  subject  to  partition."  ^ 

If  living  in  the  "  business  homestead"  saves  a  "  residence 
homestead  "  from  the  consequences  of  abandonment  when  it 
is  leased  for  hire,  would  the  converse  be  true?  That  is,  would 
the  doing  of  business  in  the  "  residence  homestead,"  with  the 
other  rented  out,  save  the  latter  from  the  consequences  of 
abandonment  as  a  "  business  homestead?  "     If  not,  why? 

Leasing  out  property  not  needed  for  homestead  purposes 
exposes  it  to  liability ;  ^  and  there  should  be  no  difference, 
whether  the  property  be  claimed  as  homestead  of  one  class  or 
of  the  other. 

§  7.  ^^  Business  Homesteads  " — Increase  of  Exemption. 

The  raising  of  the  protection  from  naked  land  worth  two 
thousand  dollars  to  the  same  sort  (i.  e.,  vacant  lots)  worth 
five  thousand,  by  the  provision  of  the  constitution  under  con- 
sideration, is  not  retroactive.  It  does  not  cover,  with  the 
mantle  of  protection,  any  additional  ground,  if  that  which  was 
worth  two  thousand  dollars  when  designated  under  the  old 
constitution  is  now  worth  five  thousand  dollars  under  the  new, 
without  counting  the  value  of  the  improvements,  which  may 
be  worth  many-fold  more.*   For  instance :  A  beneficiary  owned 

1  Id.,  citing  Pfeiiffer  v.  McNutt,  74  poses,  not  for  business  purposes,  was 

Tex.  640.  required  by  the  successive  Texas  con- 

2M  stitutions  of  1845, 1856  and  1869.   Sev- 

^Blum  V.  Rogeis,  78Tex.  530.  eral   town    lots    might  constitute  a 

*  Actual  use  for   homestead  pur-  homestead,  but  they  must  all  be  used 


250  EXEMPT    UUSINESS    PLACES. 

six  stores,  two  of  which  he  occupied  with  his  own  mercantile 
business.  He  also  owned  a  dwelling  situate  on  four  lots  of 
ground,  which,  without  the  residence  and  appurtenances 
thereon,  was  estimated  at  two  thousand  dollars  in  1859,  but 
at  five  thousand  dollars  in  187Y.  The  lots  containing  the 
stores  which  the  beneficiary  occupied  were  estimated  at  four- 
teen thousand  dollars  exclusive  of  the  stores  and  all  improve- 
ments. 

It  was  contended  that  all  the  vacant  lots  were  worth  no 
more  when  first  acquired  than  the  allowance  under  the  pres- 
ent constitution,  and  that  the  value  then  should  be  taken ; 
that  the  four  lots  containing  the  family  residence  were  then 
worth  no  more  than  two  thousand  dollars ;  so,  more  property 
should  be  set  apart  as  exempt  to  make  up  the  additional  three 
thousand  dollars,  under  the  constitution  as  it  now  is.  But 
the  court  declined  to  take  this  view.' 

The  term  husine&s  homestead  seems  to  be  a  misnomer.  If, 
because  a  factory  or  a  merchant's  store-building  is  used  to 
support  the  owner's  family,  it  may  be  designated  by  this  term, 
why  may  not  an  exempt  chattel  employed  for  the  same  pur- 
pose be  so  designated?  Domestic  animals  are  exempted  to  a 
prescribed  number  in  most  of  the  states,  because  they  contrib- 
ute to  the  support  of  the  owner's  family  —  but  we  do  not  call 
a  horse  a  homestead. 

§  8.  Alternate  Homesteads. 

The  idea  of  duality  of  homestead,  already  advanced,  may 
have  given  rise  to  that  of  alternate  homesteads.  A  bene- 
ficiary had  two  improved  lots,  and  he  and  his  wife  occupied 
sometimes  the  one  and  sometimes  the  other.  Had  one  been 
claimed  as  the  domestic  and  the  other  the  business  place,  both 
might  have  been  protected  under  the  cases  which  have  already 
passed  under  brief  review;  but  such  was  not  the  case.  The 
question  was  whether  the  property  under  seizure  was  exempt. 
If  the  other  was,  that  could  not  be  unless  one  of  the  two  was 

for  that  purpose.      Iken  v.  Olenick,  husband     aloue     unless     previously 

43  Tex.   195.      Contra,   Hancock   v.  abandoned  as  a  business  place.   Miller 

Morgan,  17  Tex.  583.     The  constitu-  v.  IMeuke,  56  Tex.  539 ;  Inge  v.  Cain, 

tion  of  1876  first  included   business  65  Tex.  75. 

establishments      with      homesteads.  '  Liuch  v.  Broad,  70  Tex.  92,  citing 

which  cannot   be   conveyed   by  the  McLane   v.  Paschal.  6'2  Tex.   102. 


BUSINESS    USES    AS    INDICIA.  2.")  L 

used  for  business  purposes  and  therefore  excm})t.  It  so  hap- 
pened that  the  beneficiary  and  his  wife  were  living  on  the 
seized  lot  at  the  time  the  levy  was  made.  Tlie  court  decided 
that  they  held  that  by  actual  occupancy,  and  so  the  seizure 
had  to  let  go  its  grip.  But  had  the  other  property  been  aban- 
doned by  a  temporary  removal  only? 

It  wnll  be  seen  that  the  alternate  occupancy  of  two  homes 
may  lead  to  great  abuse.  It  is  permanent  occupancy  of  neither, 
and  no  homestead  would  be  allowed  in  either,  under  the  laws  . 
of  the  states  generally.  There  seems  to  be  no  provision,  in 
those  of  the  state  where  this  case  arose,  which  countenances 
alternation  of  homes,  though  permanent  exchanges  are  per- 
missible and  not  uncommon.  Nor  did  the  court  hold  that 
habitual  alternation  is  tolerable  in  that  state.  It  merely  held 
that  the  property  actually  occupied  by  the  man  and  wife,  at 
the  time  execution  was  levied  upon  it,  w^as  exempt  as  their 
homestead,  claimed  by  them  as  such,  though  they  had  been 
living,  sometimes  at  that  place  and  sometimes  at  another.^ 
For  the  doctrine  of  duality  of  homestead  does  not  allow 
two  domestic  places  to  be  exempt  as  homes.  It  is  confined  to 
two  places,  one  occupied  by  the  family  and  the  other  used  by 
the  head  of  it  in  his  calling  or  business. 

§  9.  Business  Uses  as  Indicia. 

The  owner  of  both  may  enlarge  either  or  both  by  improve- 
ments without  incurring  liability  to  creditors,  though  the  in- 
crease of  value  take  it  far  beyond  the  monetary  limit  at  the 
time  of  the  homestead  designation.  But  he  cannot  erect  a 
building  adjoining  his  business  house,  and  lease  it  to  tenants 
without  exposing  it  to  liability  to  forced  sale.  The  indicium  — 
use  by  himself  in  his  calling  or  business  - —  would  be  wanting.^ 

"  Use,  for  the  purposes  of  a  home,"  being  one  of  the  consti- 
tutionally required  conditions  to  the  exemption  of  real  prop- 

'  Ingle  V.  Lea,  70  Tex.  609.  640.     See  further,  sec.  51  of  art.   16 

-  Hargadeue  v.  Whitfield,  71  Tex.  of  Texas  Constitution ;  Rev.  Staty.  of 

482.  490,  citing,  as  to  use :  Wynne  v.  Tex.,  arts.  2336.  2004,  2009 ;  Wright  v, 

Hudson,  66  Tex.  1 ;  Shryock  v.  Lati-  McNutt,  49  Tex.  425  ;  Gilliam  v.  Null, 

mer,  57  Tex.  674 ;  Medlenka  v.  Down-  58  Tex.  305 ;  Cannon  v.  Bonner,  38 

iug,  59  Tex.  39 ;  Iken  v.  Oleuick,  42  Tex.  490 ;    Baylor  v.  Nat  Bank,  38 

Tex.  201.   To  which  citations  may  be  Tex.  454. 
added:  Pfeiffer  v.  McNatt,  74  Tex. 


252  EXEMPT   BUSINESS   PLACES. 

erty,  in  favor  of  the  head  of  a  family,  was  construed  to  refer 
to  lots  other  than  those  on  which  the  family  resided.^  But 
he  could  hold  two  lots  as  exempt  when  his  store  covered 
part  of  both  as  his  business  establishment,  and  also  a  ware- 
house attached  thereto,  the  court  said.  Liberal  construction 
of  the  term,  "  place  for  the  exercise  of  the  calling  or  business," 
was  expressly  recognized  by  the  court.  And  (presumably  under 
the  same  liberality)  it  was  held  that  ceasing  to  use  the  store, 
by  reason  of  failure  in  business  and  making  an  assignment, 
was  not  abandonment  so  long  as  the  merchant  meant  to 
resume  business  there  whenever  pecuniarily  able  to  do  so, 
whether  in  the  former  line  or  any  othei'.^ 

It  has  been  held  that  a  partner  may  have  homestead  right 
in  his  interest  in  partnership  realty ;  that  such  interest  may 
be  secured  from  forced  sale  as  a  part  of  his  homestead,  when 
the  partnership  firm  is  solvent ;  that  his  occupancy  of  such 
property  as  his  place  of  business  is  such  use  as  will  be  deemed 
a  destination  of  it  as  homestead ;  and  that  his  creditors,  him- 
self and  his  partners  cannot  impose  an}^  lien  upon  this  interest 
as  a  business  homestead  of  the  partner,  except  for  purchase- 
money  and  improvements.^ 

A  merchant's  place  of  business  was  on  a  lot  different  from 
those  on  which  he  liv^ed.  lie  owned  an  undivided  interest  in 
the  business  lot.  The  cessation  of  his  business  upon  his  death 
did  not  divest  his  interest  of  its  exemption  character.  That 
interest  passed  to  his  heirs,  and  an  allowance,  in  lieu  of 
homestead,  was  due  to  his  widow  and  minor  children.* 

"  Property  used  by  the  head  of  the  family  for  carrying  on 
the  business  he  pursues  for  the  support  of  his  family  is  just  as 
much  a  part  of  the  urban  homestead  as  the  urban  residence; 
and  when  the  homestead  character  attaches  it  continues  until 
:  voluntarily  abandoned.  .  .  .  To  be  an  abandonment  that 
would  subject  such  property  to  seizure  and  sale,  there  must  be 
a  voluntary    .     .     .     closing  of  the  business.     .     .     .*     Being 

•  Axer  V.  Bassett,  63  Tex.  545.     See  3  Swearingen  v.  Bass«?tt,  65  Tex.  267. 

Railway  Co.  V.  Winter,  44  Tex.  597;  « Clift  v.    Kaufman,   60    Tex.   64; 

Liverpool  Ins.  Co.  v.  Ende,  65  Tex.  McDonald  v.  Campbell,  57  Tex.  615 ; 

118;  Ingle  v.  Lea,  70  Tex.  609.  Mabry  v.  Ward,  50  Tex.  411 ;  Hender- 

^  Hargadiue   v.   Whitfield,    supra;  son  v.   Ford,  46  Tex.   628 ;  Pryor  v. 

Gassoway    v.   White,    70    Tex.    475;  Stone,  19  Tex.  371. 

Bowman  v.  Watson,  66  Tex.  295.  5  ciift  v.   Kauffman,  60  Tex.   64  ; 


BUSINESS    USKS    AS    INDICIA.  2^>?> 

Harter's  [the  homestead  holder's]  place  of  business  at  the  time 
of  his  death,  we  think  it  immaterial  that  the  business  was  con- 
ducted in  the  name  of  Weaver.  .  .  .  Conceding  there  was 
fraud  on  his  part  in  resuming  and  conducting  the  business  in 
the  name  of  Weaver,  we  cannot  see  how  that  could  be  made  to 
operate  as  an  estoppel  against  appellee's  homestead  claim.  The 
property  being  homestead,  and  protected  against  creditors,  could 
not  be  the  subject  of  fraudulent  dealing  as  to  creditors.  .  .  } 
Whatever  right  appellants  had,  remained  unchanged  by  reason 
of  the  business  being  resumed  and  carried  on  in  the  name  of 
Weaver.'  Harter  had  obtained  his  stock  of  goods  on  credit. 
Those  who  furnished  him  with  the  goods  required  that  the 
business  should  he  so  Gonducted  to  protect  it  against  the  demands 
of  Harter" s  other  creditors.''^  Such  use  of  the  homestead  —  to 
protect  non-exempt  goods  from  creditors  —  was  held  not 
fraudulent  as  to  creditors.' 

A  debtor  whose  business  had  ceased  at  his  "  business  home- 
stead "  more  than  a  week  before,  sold  the  place  to  a  purchaser 
who  knew  that  the  creditors  of  his  grantor  were  about  to  at- 
tach it.  It  was  held  that  there  had  been  no  abandonment, 
and  that  the  sale  was  without  fraud. ^  But  the  leasing-  of  a 
store-house  from  year  to  year  is  abandonment  of  the  home- 
stead right.^ 

An  insolvent's  "  business  homestead  "  being  attached,  he 
and  his  wife  conveyed  it  to  their  son.  No  attachment  lien 
was  created,  for  the  constitution  ordains  that  "  no  morto-ao:e, 
trust  deed  or  other  lien  on  the  homestead  shall  ever  be  valid 
except  for  purchase-money  therefor  or  improvements  made 
thereon."  ^  There  is  no  difference  made  between  the  part  of 
the  homestead  used  by  the  family  and  that  used  for  business.^ 
Such  liens  being  void,  they  are  not  vitalized  by  the  subsequent 
divestiture  of  the  homestead  character.^  The  defendant  may 
plead  his  exemption  against  such  attachment  and  prevent  the 

Cline  V.  Upton,  56  Tex.  320 ;  Griffie  ^  Oppenheiraer  v.   Fritter,  79  Tex. 

V.  Maxey,  58  Tex.  214.  99 ;  Duncan  v,  Alexander  (Tex.),  18 

1  Citing  Beard  v.  Blum,  64  Tex.  59.  S.  W.  817. 

^  Citing  Blum  v.  Merchant,  58  Tex.  6  Const,  of  Texas,  art  16,  sec.  50. 

400.  7  Willis  V.  Mike,  76  Tex.  83. 

«King  T.  Harter,  70  Tex.  581.  8  lb.;  Inge  v.  Cain,  65  Tex.  80. 

*  Scheuber  v.  Ballow,  64  Tex.  166. 


254  EXEMPT    BUSINESS    PLACES. 

maturing  of  the  lien  by  judgment  —  otherwise  he  risks  being 
treated  as  having  waived  his  exemption. 

A  gambling-liouse  is  not  a  "  business  homestead,"  though 
conducted  by  the  head  of  a  family.^  For  the  word  lawful 
must  be  understood  to  qualify  the  term  used,  so  that  only 
lawful  "business  homesteads"  are  exempt;  just  as  the  word 
famihj^  when  occurring  in  statutes,  means  a  legally  consti- 
tuted family.^ 

§  10.  Several  Business  Callings. 

Suppose  the  head  of  a  family  has  more  than  one  calling  and 
carries  all  on  in  his  business  house,  will  that  be  countenanced 
by  the  courts  under  the  section  of  the  constitution  copied 
above? 

An  instance  is  given  of  one  who  had  several  callings,  pursue 
ing  all  of  them  for  a  livelihood.  He  was  a  notary,  convey- 
ancer, postmaster  and  mayor  of  his  town.  The  court,  in 
treating  his  peculiar  case,  said:  "We  cannot  see  that  this 
fact  (multifarious  employments)  should  militate  against  his 
rights  to  have  some  place  protected  by  law  from  forced  sale 
where  he  can  do  business  and  support  his  family.  It  may  be 
asked,  however,  should  he  have  more  than  one  such  place,  or 
should  he  have  several  places  protected  for  several  avocations? 
Could  he  legally  claim  one  house  exempt  for  the  transaction 
of  his  business  as  mayor  and  deputy  postmaster,  and  another 
as  a  notary  public  and  conveyancer?  We  must  answer  this 
question  in  the  negative.  But  we  are  met  by  the  fact  in  this 
case  that  these  two  houses  are  connected  by  arch  wa^^s  through 
the  partition  wall  running  between  them,  from  which  it  is 
suggested  that  there  are  not  two  distinct  places  used  in  the 
exercise  of  the  several  callings.  We  do  not  think  that  the 
fact  that  the  houses  were  connected  by  these  openings  should 
necessarily  control  the  case.  Suppose  a  man  should  in  this 
way  try  to  protect  a  block  of  business  houses  by  doing  a  con- 
veyancing business  in  one  corner  of  them.  This  would  be  an 
absurdity;  it  would  be  too  unreasonable  to  admit  of  discus- 
sion. The  law  is  intended  as  a  protection  to  a  fair  and  reason- 
able claim  falling  within  its  provisions;  not  an  unfair  and 
unreasonable  claim."     The  conclusion  was  that  the  claimant 

1  Tillman  v.  Brown,  64  Tex.  181.  ^  Ante,  ch.  Ill,  §  3,  p.  7. 


8EVEUAL    BUSINESS    CALLINGS.  255 

should  be  protected  in  one  of  the   buildings  only,  where  he 
might  prosecute  more  than  one  calling.^ 

AVhero  unity  of  homestead  is  maintained  but  shops  allowed 
thereon  in  which  heads  of  families  prosecute  their  callings, 
which  is  generally  allowed  in  all  the  states,  there  can  be  no 
objection  that  a  lawyer  is  also  a  notary  and  conveyancer,  at- 
tending to  the  three  callings  in  his  one  office  in  his  residence 
or  on  the  home  premises;  that  an  insurance  office  and  a  real 
estate  office  are  combined  in  one  and  employed  by  the  house- 
holder in  the  prosecution  of  two  agencies;  that  a  barber  who 
is  also  a  cujiper  (as  formerly  it  was  common),  has  his  shop  in 
his  homestead  yard,  and  the  like.* 

1  Pfeiffer  v.  McNatt,  74  Tex.  640. 

*See,  further,  on  topics  slightly  touched  in  this  cliapter,  more  extended 
treatment  in  others : 

On  exemption  of  crops,  oh.  XXV,  §  7. 

On  exemption  of  partnership  interests,  ch.  IV,  §  14. 

On  claiming  in  attachment  cases,  ch.  X,  §  7 ;  ch.  XXIII,  §§  17-19 ;  ch. 
XXVIII,  §§  1,  2,  8. 

On  fraud  upon  creditors,  cli.  XVL 

On  limitation  to  one  homestead,  ch.  VII,  §  1. 


CHAPTEE  IX. 


QUASI-ESTATE  OF  HOMESTEAD. 


1.  Qualification  of  the  Legal  Title. 

2.  Defeasible    but    Indeterminate 

"  Estate." 

3.  Similar  to  Dower. 

4.  Right  of  Occupancy  Called  an 

"  Estate." 

5.  The  Right  and  the  Estate  Com- 

pared. 


§  6.  The  Right  Not  Strictly  an  Es- 
tate. 

7.  New  Features    but  Not    New 

Title. 

8.  Trust  Estate. 

9.  Qualified  Title. 

10.  Exemption     and    "Estate     of 
Homestead." 


§  1.  Qualification  of  the  Legal  Title. 

Estate  of  homestead  is  a  term  that  has  come  somewhat  into 
use,  though  it  is  eschewed  by  the  courts  in  most  of  the  states. 
If  employed  only  in  the  sense  in  which  we  may  speak  of  dower 
as  an  estate,  meaning,  for  instance,  that  it  is  an  estate  for  life, 
or  for  years,  it  may  not  mislead.  If,  on  the  other  hand,  we 
use  the  term  as  though  it  designated  a  new  kind  of  estate  dis- 
tinguishable from  those  of  freehold  long  established,  w^e  may 
create  confusion  if  we  do  not  lead  to  error. 

The  estate  in  fee  may  be  qualified  by  restraint  of  alienation 
and  of  testamentary  disposition,  and  may  be  clothed  with  cer- 
tain immunities.  The  estate  for  life,  of  a  widow,  may  be 
qualified  or  absolute;  may  be  defeasible  by  remarriage  or 
non-occupancy.  The  estate  for  years,  of  a  minor,  may  be  sub- 
ject to  conditions. 

The  quahfications  or  conditions,  affecting  the  tenure,  do 
not,  in  any  case,  constitute  a  distinctive  "  estate  of  home- 
stead "  to  be  classified  among  freehold  estates  as  a  new  spe- 
cies. The  privileges,  accorded  by  law  to  the  beneficiary  claim- 
ing them,  attach  to  any  title  by  which  he  may  hold  —  even  to 
leasehold.  Exemption  of  realty  from  forced  sale  does  not 
differ  in  character  from  exemption  of  chattels  from  such  sale ; 
yet  who  would  claim  an  estate  in  personal  property?  or  con- 
sider it,  therefore,  analogous  to  an  estate?  Who  would  claim 
homestead  estate  in  his  household  o-oods? 


QUALIFICATION    (tF     VllK    LEGAL     ilTLE.  257 

Paradoxical  as  it  may  seem,  one  may  have  a  home  in  mov- 
able property,  such  as  a  house  on  wheels,  a  wharf-boat  in 
which  a  family  permanently  abides  —  perhaps  in  a  floating 
dwelling  moored  from  time  to  time  to  the  shore  —  possibly  in 
any  home  having  no  "local  habitation."  Take  a  house  on 
wheels ;  there  can  be  no  "  homestead  estate  "  in  it,  but  it  may 
be  exempt  under  the  homestead  law,  though  it  is  a  chattel. 
"  House  is  necessarily  embraced  in  the  word  homestead.^  If 
the  head  of  a  family  owns  a  house  and  no  interest  or  estate 
in  the  land  on  which  it  stands,  the  house  is  a  chattel.  If  he 
occupies  it  with  his  family,  it  is  their  home.  He  may  be  com- 
pelled to  move  it  from  one  lot  to  another  as  fast  as  legal  pro- 
cess can  oust  him,  still,  though  ambulatory,  unsatisfactory,  and 
in  all  its  appointments  mean;  though  it  advertises  the  thrift- 
less povert}^  of  its  proprietors,  and  is  a  caricature  of  the 
princely  possibility  of  the  exemption  laws,  it  is  the  home  of  a 
family,  and  is  embraced  in  the  spirit  and  purpose,  if  not  the 
letter,  of  the  constitution."  ^  Such  a  novel,  migratory,  chattel 
home  might  exist  in  any  state,  and  would  be  protected  under 
the  homestead  laws  of  several,  even  perhaps  of  some  which 
recognize  the  homestead  right  as  a  peculiar  and  unique  "  es- 
tate of  homestead."  Its  introduction  here  may  serve  to  show 
that  homestead  is  not  always  an  estate  of  any  kind. 

But  it  is  said  in  the  same  state  in  which  the  above  decision 
was  rendered :  "  The  homestead  right  when  fixed  is  an  estate 
in  the  land  —  it  is  more  than  a  mere  privilege  of  occupancy. 
The  land  on  which  the  estate  has  been  fixed  is  exempt  from 
execution,  nor  can  it  be  a  subject  of  mortgage  by  its  owner. 
The  creditor  has  no  rights  in  it  nor  to  it  as  a  security ;  nor  is 
he  defrauded  by  the  debtor  holding  it  or  by  any  disposition 
he  may  make  of  it."  ^ 

What  kind  of  an  estate  in  land?  It  is  one  in  fee,  or  for  life, 
or  for  a  term,  or  at  will :  not  a  new  kind  of  estate  in  land. 
The  estate  of  homestead  has  no  independent  existence,  apart 
from  the  title.*  However,  it  resembles  an  estate  in  some  re- 
spects :  hence  the  title  of  this  chapter. 

'Franklin  v.  Coffee,  18  Tex.  417.  SRargadine  v.  Whitfield,  71  Tex. 
See  Scott  v.  Dyer.  60  Tex.  135.  482-4SS. 

2  Cullers  V.  James,  66  Tex.  498.  <  Kitterlin  v.  Milwaukee  Ins.  Co., 

134  111.  647. 

17 


258  QUASI-KSTATE    OF    HOMESTEAD. 

§  2.  Defeasible  but  Iiuleterminate  *^  Estate." 

Under  a  statute  exempting  homestead  to  a  certain  value 
when  owned  and  occupied  by  the  beneficiary  as  his  family 
residence,  or  rightfully  possessed  as  such;  and  containing  the 
exemption  to  his  widow  and  minor  children  during  their  oc- 
cupancy of  the  premises;  and  forbidding  the  husband  to  con- 
vey without  joinder  by  his  wife,  it  was  held  that  these  pro- 
visions created  a  new  kind  of  estate,  resembling  freehold, 
defeasible  but  indeterminate.'  It  was  held  to  be  such  a  free- 
hold estate  "  as  will  avail  the  tenant  in  defense  to  a  writ  of 
entry."  ^  "  If  the  tenant  seek  to  defeat  the  suit  hy  justifying 
his  acts  of  possession  under  some  right  less  than  the  entire 
freehold,  he  must  specify  the  right  or  title  upon  which  he  re- 
lies, and  disclaim  it  as  to  the  residue."  ^ 

Such  "  estate  of  homestead  "  is  not  disposable  by  will;  *  and 
the  court,  so  holding,  evidently  meant  that  the  realty,  on 
which  the  exemption  right  rested,  would  not  be  affected  by 
last  testament  so  as  to  defeat  the  exemption  provisions  for 
the  widow  and  children  of  the  testator.  This  is  a  qualifica- 
tion of  the  estate  in  fee,  or  for  life,  or  for  years,  as  the  case 
may  be :  not  a  new  kind  of  estate  based  on  the  limitation  sug- 
gested. This  restriction  no  more  justifies  the  use  of  the  novel 
term  than  others  which  usually  accompany  the  homestead 
privileges. 

In  the  language  of  Judge  Gray :  "  A  right  of  homestead 
under  our  statutes  [those  of  his  state]  is  a  freehold  estate 
defeasible,  during  the  life  of  the  householder,  onl}^  by  deed  in 
which  his  wife,  if  any,  or,  if  she  is  insane,  her  guardian  joins, 
or  by  acquiring  a  new  homestead.  .  .  .  The  title  in  the 
homestead  estate  after  the  death  of  the  husband  and  father, 
and  so  long  as  either  the  widow  remaining  unmarried  or  any 
child  under  age  continues  to  occupy  it,  most  nearly  resembles 


iBrettun  v.  Fox,  100  Mass.  235 
Kerley  v.  Kerley,  13  Allen,  287 
Woodbury    v.   Lviddy,    14  Allen,  1 


^Ib.,  citing  Dunbar  v.  Mitchell,  12 
Mass.  374;  Russell  v.  Lewis,  2  Pick. 
508 ;  Wheelright  v.  Freeman,  12  Met. 


Silloway  v.  Brown,  12  Allen,  32 :  Du-  154;  Johnson  v.  Raynor,  6  Gray.  107. 

lanty  v.  Pynchon,  6  Allen,  510 ;  Doyle  See  Castle  v.  Palmer,  6  Allen,  401 ; 

V.   Coburn,   6   Allen,   71 ;    White  v.  Parks  v.  Reilly,  5  Allen,  77 ;  Walcot 

Rice,  5  Allen,  73 ;  Smith  v.  Provin,  4  v.  Knight,  6  Mass.  418. 
Allen,  516.  *  Brettun  v.  Fox,  100  Mass.  235. 

2  Swan  V.  Stephens,  99  Mass.  7. 


DKI-EASIULE    BUT    INDETERMINATE    "ESTATE."  259 

tluit  of  liiisbiind  and  wife  at  common  law  under  a  grant  to 
both  ot"  tliem,  by  which  they  become  seized  not  of  moieties, 
but  of  the  entirety,  j^t'/"  tout  et  per  my,  and  neither  could  dis- 
pose of  any  part  without  the  assent  of  the  other.  But,  al- 
though the  title  in  the  homestead  estate  is  in  the  widow 
during  widowhood  and  in  all  the  minors  respectively  while 
under  age,  the  right  of  possession  and  enjoyment  is  in  those 
only  of  the  family  who  remain  in  the  occupation  of  the  home- 
stead. This  is  the  only  construction  which  will  reconcile  all 
the  provisions  of  the  statute,  and,  while  avoiding  the  anomaly 
and  inconvenience  of  frequent  changes  in  the  title  of  the  real 
estate  upon  any  child's  temporary  departure  from  or  return  to 
the  liomestead,  will  carry  out  the  purpose  of  securing  one 
iiome  for  the  family,  free  from  the  intrusion  of  creditors  or 
strangers.'"  ^ 

Applying  the  principle,  the  learned  judge  says:  "In  this 
case,  the  only  minor  child  having  voluntarily  left  the  prem- 
ises and  taken  up  her  abode  elsewhere  with  her  guardian, 
though  she  still  had  a  joint  title  with  the  widow  in  the  home- 
stead estate,  yet,  while  not  living  thereon,  had  no  right  of 
possession,  and  could  not  maintain  an  action  in  the  nature  of 
trespass  for  an  entry  u])on  and  occupation  of  the  premises. 
We  need  not  therefore  consider  the  embarrassment  attending 
the  maintenance  of  such  an  action  by  a  ward  against  her 
guardian.  So  lonff  as  the  child  resides  elsewhere,  the  exclu- 
sive  right  of  possession  was  in  the  widow,  who  might  main- 
tain an  action  against  a  trespasser.  The  guardian  of  the  child 
had  no  better  right  to  the  use  or  occupation  than  any  stranger. 
The  result  is  that  this  action  cannot  be  maintained  in  the 
joint  names  of  the  widow  and  the  minor  child.  But  the  writ 
may  be  amended  by  striking  out  the  name  of  the  child,  and 
the  widow  will  thereupon  be  entitled  to  judgment  against  the 
defendant."  2 

It  will  be  seen,  by  inspection  of  the  foregoing,  that  estate 
in  homestead,  as  distinguished  from  the  estate  out  of  which  it 
is  carved,  is  "the  right   of   possession  and  enjoyment"  "in 

1  Abbott  V.  Abbott,  97   Mass.  136,        '^Ib.,  139,  140,  citing  on  trespass  for 
citing,   on  tbe  nature  of  the   joint    entry,  French  v.  Fuller,  23  Pick.  104. 
possession,  2  Bl.  Com.  182;  Shaw  v. 
Hearsey,  5  Mass.  523. 


260  QUA  SI-ESTATE    OF    HOMESTEAD. 

those  only  of  the  family  who  remain  in  the  occupation  of  the 
homestead." 

It  will  be  seen,  further,  that  distinction  is  made  between 
"  the  title  in  the  homestead  estate  "  and  such  right  of  "  posses- 
sion and  enjoyment."  The  non-occupying  minor  did  not  lose 
her  title  to  the  property  by  losing  her  "  right  of  ])cssession 
and  enjoyment,"  nor  did  she  lose  her  "estate  in  homestead." 

The  court  does  not  seem  to  have  thought  that  the  minor 
had  forfeited  her  estate  in  the  homestead,  for  it  is  intimated 
that  she  might  return  at  will,  and  that  the  widow  was  in  pos- 
session —  one  for  all  —  during  the  girl's  absence.  So  this  "  es- 
tate "  was  something  different  from  the  "  right  of  possession 
and  enjoyment,"  and  also  different  from  title  to  the  land. 
There  might  have  been  adult  heirs  who  would  have  shared  in 
the  title  to  the  land,  but  not  in  the  "  estate  in  homestead," 
nor  in  the  "  right  of  possession  and  enjoyment,"  There  seems 
to  be  some  confusion  in  these  terms  thus  brought  together. 
"The  Tight  of  homestead"  is  first  declared  to  be  a  "  freehold 
estate  defeasible  during  the  life  of  the  householder  "  except  in 
certain  ways ;  then  we  have  the  distinctions  above  pointed 
out,  and  finally  it  is  said :  "  This  is  the  only  construction 
which  will  reconcile  all  the  provisions  of  the  statute."  ^ 

§  3.  Similar  to  Dower. 

The  right  or  interest  which  is  awarded  the  widow  as  her 
homestead  from  her  husband's  estate  is  frequently  called  an 
"  estate  of  homestead  "  by  the  court  from  which  the  above 
decisions  are  cited.^  The  sense  is  much  the  same  as  when  we 
say  "  estate  of  dower,"  meaning  the  widow's  life  estate  in  her 
portion  of  her  deceased  husband's  landed  property,  and  not 
meaning  a  new  kind  of  title.  In  some  states  she  takes  abso- 
lutely ;  in  others  she  has  no  property  right  of  homestead  but 
only  the  personal  privilege  of  occupancy  Avhich  she  cannot ' 
convey. 

By  a  statute  giving  the  right  of  homestead  to  a  wife,  which 
may  be  set  off  and  assigned  her  during  the  life  of  her  hus- 
band, it  was  held  that  such  right  does  not  constitute  a  vested 

1  lb.,  p.  139.  V.  Chace,  11  Allen,  194;  Monk  v.  Ca- 

2  Paul  V.  Paul,  136  Mass.  286 ;  Cow-  pen,  5  Allen,  146 ;  Waller  v.  Waller, 
drey  v.  Cowdrey,  131  Mass.  186;  Fos-    131  Mass.  446. 

ter  V.  Leland,  141  Mass.  187 ;  Mercier 


SIMILAH    TO    DDWKK.  2G1 

estate  or  interest  in  tlic  land,  ])rior  to  the  assigntnont ;  that 
her  light  is  inclioatc  and  similar  to  that  of  dower;  that  no 
estate  technically  rests  in  the  wife;  and  that  she  has  no  such 
right  or  intent  as  can  be  set  up  in  defense  to  an  action  of  tres- 
pass quare  dausum  f regit.  Under  a  former  statute  she  could 
not  set  up  such  interest  as  an  estate  in  land  in  defense  of  such 
an  action,  though  the  homestead  had  been  assigned.' 

In  the  case  first  cited  above  the  court  said :  "  The  wife  can- 
not be  considered,  at  least  while  her  husband  lives,  as  having 
any  vested  estate  in  the  premises  until  her  homestead  has 
been  assigned  her ;  till  then  she  has  merely  an  imperfect,  an 
inchoate  right,  which  is  not  assignable,  and  is  not  a  vested 
estate.  .  .  ."  Evidently,  the  term  ^.s?'r;7'd  is  employed  in  the 
sense  in  which  it  would  be  used  in  speaking  of  dower.  The 
court  is  not  to  be  understood  as  implying  that  the  wife,  after 
homestead  has  been  assigned  her,  would  have  any  estate  in  it 
of  a  character  distinguishable  from  estate  for  life.  The  quali- 
fications imposed  by  the  homestead  law  do  not  make  her 
vested  right  a  new  and  peculiar  estate  thus  distinguishable; 
as  the  law  conferring  dower  does  not  make  such  right  an 
estate  outside  of  the  usual  classification  of  estates.  The  wife's 
or  widow's  estate  in  the  homestead,  like  her  estate  of  dower, 
is  a  life  estate  of  freehold;  and  the  former  may  be  an  estate 
for  years  in  leasehold,  under  some  statutes. 
I  The  two  statutes  above  cited  have  been  thus  compared,  with 

reference  to  the  homestead  right  of  the  widow.  In  the  first: 
"  Her  interest  \vas  a  mere  personal  right  to  occupy  during  her 
life.  It  w^as  no  estate  that  she  could  transfer  to  another." 
In  the  second :  "  The  homestead  right  was  secured  to  the 
Avife,  widow  and  children  of  every  person  owning  and  Occu- 
pying a  homestead,  for  and  during  the  life  of  such  wife  or 
widow  and  the  minority  of  such  children.  The  homestead 
right  thus  exempted  is  not  the  entire  estate  in  the  homestead, 
but  a  life  estate  merely."  ^ 

1  Tidd  V.  Quinn,  53  N.  H.  341 ;  Gen.  N.  H.  40  ;  Strachn  v.  Foss,  42   N.  H. 

Stat.    N.    H.,   ch.    134,   §  1 ;  Acts   of  43 ;  Horn  v.  Tufts,  39  N.  H.  484  ;  Gun- 

18G8,  ch.  1,  §  33.  5ee  Gen.  Laws  N.  H.  uison    v.    Twitchell,    38    N.  H.    63; 

1878,  ch.  138,  p.  330 ;  Barney  v.  Leeds,  Fletcher  v.  Stiite  Bank,  37  N.  H.  391 ; 

51   N.  H.  353 :  Judge  of  Probate  v.  Atkinson  v.  Atkinson,  37  N.  H.  434 ; 

Simonds,   46  N.  H.   368 ;  Bennett  v.  Norris  v.  Moulton,  34  N.  H.  397, 

Cutler,  44  N.  H.  70 ;  Header  v.  Place.  "■  Cross  v.  Weare,  63  N.  H.  135,  quot- 

43  N.  H.  307 ;    Foss  v.  Strachn,   43  ing  from  the  above  cited  cases  in  46 


262  QUASI-ESTATE    OF    HOMESTEAD. 

Yes,  the  widow  has  life-estate,  the  minor  heirs  an  estate  for 
years,  both  in  the  freehold  estate ;  but  there  is  no  "  estate  of 
homestead  "  to  be  distinguished  from  these  as  a  separate  class ; 
and  the  court  did  not  so  intend.  The  term  "  estate  in  home- 
stead" has  been  thus  frequently  applied,^  but  not  with  strict  pro- 
priety when  there  was  no  property  right;  a  mere  privilege, 

§  4.  Right  of  Occupancy  Called  "  Estate." 

The  right  to  the  use  and  occupancy  of  the  homestead  is  a 
substantial  interest,  which,  by  the  laws  of  most  of  the  states, 
inures  to  the  benefit  of  the  surviving  members  of  the  benefi- 
ciary's family.  It  is  this  substantial  interest  which  is  fre- 
quently called  "  estate  in  homestead."  ^  It  is  usually  an  estate 
for  life  of  the  surviving  spouse,  and  an  estate  for  years  of  the 
minor  children.  It  is  generally  made  conditional  —  depend- 
ent upon  occupancy,  but  may  be  absolute,  and  is  so  under  sev- 
eral homestead  systems,  so  that  the  holder  of  the  estate  is 
not  confined  to  a  particular  use  of  it.^ 

The  survivor  stands  in  place  of  the  deceased  owner,  having 
the  same  rights,  and  may  retain  or  dispose  of  the  estate  in 
the  property  as  the  owner  could  have  done,  to  the  extent  of 
that  estate,  when  the  statute  declares  hmi  or  her  "  entitled 
to  hold  "  it,  for  the  term  designated.  The  meaning  is  "  the 
right  to  possess  the  property  in  virtue  of  a  legal  ownership, 
and  is  not  limited  to  an  actual  personal  occupancy;  and  un- 
less the  term  'homestead'  itself  implies  a  condition,  the  ten- 
ure is  that  of  an  ordinary  tenant  for  life.  .  .  .  The  sur- 
vivor takes  a  life  estate  in  the  homestead  premises  analogous 
to  that  of  dower."  * 

and  52  N.  H.  See  Gen.  Laws  of  N.  H.  Skouton  v.  Wood,  57  Mo.  380,  modi- 

1878,  ch.  138,  p.  830.    See  Batclielder  fled  by  Poland  v.  Vesper,  67  Mo.  727. 

V.  Fottler,  62  N.  H.  445,  overruling  2 1  Wash,  on  Real  Prop.  342. 

Spaulding's  Appeal,  52  N.  H.  336.  3  Holbrook  v.  Wightman,  31  Minn. 

1  Otto  V.  Sprague,  27  Kas.  620 ;  Citi-  168,  170,  decided  under  statute  since 

zens' Bank   v.  Bowen,  25   Kas.  117;  amended  by  Laws  1889,  ch.  46,  §  63 

Wicks  V.  Smith,  21  Kas.  412 ;    Hixon  et  seq. 

V.   George,   18  Kas.   253;    Moore  v.  ^  Holbrook  v.  Wightman,  31  Minn. 

Reaves,   15    Kas.    150;    Brandon    v.  171-2,  modifying  Eaton  v.  Robbins, 

Brandon,  14  Kas.  342 ;  Helm  v.  Helm,  29  Minn.  327,  and  saying :  "  Eighty 

11  Kas.  19;  Vandiver  v.  Vandiver,  20  acres,  and  the  dwelling-house  there- 

Kas.  501.     See  Jenuess  v.  Cutter,  12  on,  owned  and  occupied,  etc.,  consti- 

Kas.  516;  Herrold   v.  Reen,  58   Cal.  tute    the    exempt   homestead.     This 

446,   and    cases    therein    cited.     See  the  law  transmits  to  the  survivor  for 


THE    RIGHT    AND    THE    ESTATE    COMPAUED.  263 

If  a  surviving-  husband  or  wife  has  an  unconditional  life  es- 
tate in  the  homestead,  the  fee  may  be  administered  upon  as  a 
part  of  the  decedent's  estate  when  it  is  not  in  the  survivor. 
This  life  estate,  being  unconditional,  need  not  be  occupied  by 
minor  heirs,  nor  even  by  the  surviving  spouse,  in  order  to  pre- 
serve its  exemption.  Being  owned  absolutely  for  life,  it  may 
be  alienated  at  the  will  of  the  owner.  The  exemption  priv- 
ilege, however,  would  not  pass  to  the  grantee  with  the  life 
estate.     The  title  would  be  shorn  of  this  immunity.^ 

The  occupant  owning  a  homestead  may  not  hold  the  legal 
title,  yet  be  a  beneficiary  within  the  provisions  of  the  law.- 

§  5.  The  Right  and  the  Estate  Compared. 

The  study  of  the  subject  in  hand  will  be  greatly  facilitated 
by  reference  to  the  decisions  of  a  state  which,  under  one  stat- 
ute, denied  "  estate  of  homestead,"  but,  under  a  later  one  em- 
ploying the  term,  maintain  it.  Of  the  homestead  right,  under 
the  old  law,  it  is  now  said : 

"  A  right  so  precarious  and  restricted  was  not  only  to  some 
extent  anomalous  in  the  law  of  real  property,  but  it  failed  to 
meet  the  varied  wants  and  necessities  of  homestead  occupants 
and  their  families,  growing  out  of  the  ownership  of  such  an 
interest.  Temporary  removals,  even,  could  not  safely  be  made 
without  giving  color  to  the  claim  of  abandonment ;  and,  if  the 
occupant  did  not  happen  to  own  the  estate  to  which  the  right 

life,   not    merely   to  retain  it  as  a  to  pay  debts  due  by  the  general  es- 

family  residence,  nor  as  long  as  it  tate  of  the  decedent.     The  court  said 

shall    remain    a    homestead."      Ed-  in   deciding  McCarthy  v.  Van   Der 

wards'   Lessee  v.   Darby,  13  Wheat  Mey,  speaking  of  a  surviving  wife's 

206,  210;  Dwarris  on  Stat.  179,  note;  homestead  right:  "This  estate  is  an 

Wilder  v.  Haughey,  21  Minn.  101.  absolute,  unconditional  estate  for  life. 

1  McCarthy   v.  Van   Der   Mey,   42  It  is  not  qualified  by  or  subject  to  a 

Minn.  189 ;  Holbrook  v.  Wightman,  distinct  or  independent  right  of  oc- 

31  Minn.  168,  both  under  old  statutes ;  cupancy  by  the  minor  children.    The 

Laws    1876,  ch.  37,  since  amended ;  survivor  has  the  sole  right  to  the  use, 

Lawsof  1889,  ch.  46.  By  the  homestead  enjoyment  and  disposition  of  such 

law  of  Minnesota,  in  Gen.  Stat.  1878,  estate  during  his  or  her  life.     .     .    . 

ch.  68,  §  1,  the  right  of  the  wife  and  We  need  not  consider    .     .    .     the 

of  minor  children  depends  upon  their  effect  of  the  act  of  1889." 
occupancy.    The  Laws  of  1889  affect        2  Jelinek  v.  Stepan,  41  Minn.  412 ; 

the  estate  in  fee  so  that  it  is  no  longer  Hartmau  v.  Munch,   21    Minn.  107; 

an  asset  of  the  decedent's  estate  to  be  Wilder  v.  Haughey,  21  Minn.  101. 
administered,  and  cannot  now  be  sold 


264  QUA8I-E8TATE   OF    HOMESTEAD. 

attached,  however  valuable  he  may  have  rendered  it  by  im- 
provements, and  however  imperative  his  necessities  might  re- 
quire a  change  of  residence,  he  could  not  sell  or  otherwise 
dispose  of  it  to  any  one  except  the  owner  of  the  estate,  who 
might  allow  him  something  or  nothing  for  it,  just  as  he  saw 
fit.  The  homestead  occupant  tlius  circumstanced  was  placed 
completely  at  the  mercy  of  the  owner  of  the  legal  title. 

"  Again,  the  right  of  the  surviving  husband  or  wife  to  the 
homestead  might  be  defeated  altogether,  by  partition  proceed- 
ings at  the  suit  of  the  heirs,  at  that  advanced  period  of  life 
when  the  comforts  of  a  home  are  most  needed.  With  a  view 
of  remedying  these  inconveniences  and  manifest  defects  in  the 
prior  law,  and  placing  the  right  of  homestead  upon  a  substan- 
tial and  solid  basis,  the  legislature,  in  1873,  passed  an  amend- 
atory act,  radically  changing  some  of  the  provisions  of  the 
homestead  law,"  providing  "  that  every  householder  having  a 
family  '  shall  be  entitled  to  an  estate  of  homestead,  to  the  ex- 
tent in  value  of  one  thousand  dollars,  in  the  farm  or  lot  of 
land  and  buildings  thereon,  owned  or  rightly  possessed,  by 
lease  or  otherwise,  and  occupied  l)y  him  or  her  as  a  residence ; 
and  such  homestead,  and  all  right  and  title  therein,  shall  be 
exempt  from  attachment,  judgment,  levy  or  execution,  sale 
for  the  payment  of  his  debts,  or  other  purposes,  and  from  the 
laws  of  conveyance,  descent  and  devise,  except  as  hereinafter 
provided.'  .  .  .  Since  this  estate  is  measured  exclusively 
by  the  value  of  the  premises  themselves,  it  follows  that  where 
the  owner  of  the  fee  and  the  owner  of  the  homestead  is  the 
same  person,  such  owner  cannot  have  any  disposable  interest 
in  the  premises  independent  of  the  homestead,  where  the  total 
value  does  not  exceed  one  thousand  dollars ;  and  since  the 
homestead,  in  such  case,  comprises  the  entire  interest,  it  fol- 
lows that  any  conveyance  by  the  owner  which  does  not  con- 
form to  the  requirements  of  the  statute  with  respect  to  the 
conveyance  of  homesteads,  will  be  inoperative  and  void  as  to 
such  homestead.     .     .     . 

"  The  right  of  homestead  having  been  ,  .  .  enlarged 
into  an  estate,  it  follows  that,  like  all  other  estates,  it  can  have 
no  separate  existence  independent  of  the  title  which  consti- 
tutes one  of  its  essential  elements.  Every  owner  of  a  home- 
stead, under  the  present  law,  has  no  estate  in  the  premises,. 


THE    KIGHT    NOT    STRICTLY    AN    ESTATE. 


2G5 


cither  in  fee,  for  life  or  years,  to  the  extent  of  $1,000.  Where 
the  head  of  the  family,  having  an  estate  in  fee  in  the  home- 
stead premises,  dies,  and  the  right  of  homestead  devolves  upon 
the  surviving  husband  or  wife  by  operation  of  law,  a  life  es- 
tate is  carved  out  of  the  fee  for  the  purposes  of  such  estate  of 
homestead,  and  the  heirs  take  a  reversion  in  fee  only,  expect- 
ant upon  the  termination  of  such  life  estate.  In  like  manner, 
where  the  homestead  is  cast  upon  the  children  of  the  family, 
an  estate  for  years  is,  by  operation  of  law,  carved  out  of  the 
fee  for  the  purposes  of  such  estate  of  homestead  in  the  chil- 
dren. These  rights,  flowing  from  the  present  statute,  are  anal- 
ogous to  the  common-law  doctrines  by  which  the  inheritance 
of  the  heirs  is  subjected  to  the  dow^er  of  the  wife  and  the 
curtesy  of  the  surviving  husband."  ^ 

§  6.  The  Right  Not  Strictly  an  Estate. 

The  right  of  homestead,  under  the  older  legislation,  was  not 
an  estate  in  land.  It  was  not  alienable  so  as  to  become  vested 
in  a  grantee.  It  w^as  a  right  to  enjoy  a  home  free  from  lia- 
bihty  to  forced  sale  to  pay  the  debts  of  the  owner  of  the  land, 

•  Mr.  Justice  Mulkey,  for  the  court, 
in  Browning  v.  Harris,  99  111.  460-2. 
Further  to  show  that  homestead 
estate  now  exists  in  Illinois,  White 
V.  Plummer,  96  111.  394,  holding  that 
a  surviving  wife  has  such  homestead 
estate  that  she  may  rent  it.    Eldridge 


T.  Schlader,  52  111.  78 ;  McClurken  v. 
McClurken,  46  III.  337;  Jones  v.  Gil- 
bert, 135  111.  27;  Bliss  v.  Clark,  39 
111.  590;  Conroy  v.  Sullivan.  44  111. 
451 ;  Turner  v.  Bennett,  70  111.  263. 
By  the  Act  of  1873  (Laws  of  Illinois), 
p.  99,  it  was  enacted,  "That  every 
V.  Pierce,  90  III.  474,  holding  that  the    householder   having  a  family  shall 


homestead  estate  embraces  the  entire 
interest  up  to  $1,000.  Leupold  v. 
Krause,  95  111.  440;  Hartman  v. 
Schultz,  101  111.  437 ;  Watson  v.  Saxer, 
102  111.  585 ;  Rice  v.  Rice,  108  111.  199  ; 
The  People  v.  Stitt,  7  111.  Ap.  294; 
Ryhiner  v.  Frank,  105  111.  326 :  Kifli- 
brell  V.  Willis,  97  111.  494 ;  Cowdrey 
V.  Hitchcock,  103  111.  262 ;  Moriarty 
v.  Gait.  112  111.  378;  Raber  v.  Gund, 
110  111.  581;  Rock  v.  Haas,  110  111. 
528 :  Trowbridge  v.  Cross,  117  111.  109  ; 
Lewis  V.  McGraw,  19  111.  Ap.  313; 
Hotchkiss  V.  Brooks,  93  111.  387; 
Hartwell  v.  McDonald,  69  III.  293; 
Conklin  v.  Foster,  57  111.  104 ;  Tom- 
lin  V.   Hilgard,  43  111.  300:    Trickey 


be  entitled  to  an  estate  of  homestead, 
to  the  extent  in  value  of  $1,000,  in 
the  farm  or  lot  of  land  and  buildings 
thereon,  owned  or  rightly  possessed, 
by  lease  or  otherwise,  and  occupied 
by  liim  or  her  as  a  residence,  .  .  ." 
and  it  was  made  exempt  fi-oni  sale 
for  debt  and  from  the  laws  of  con- 
veyance, descent,  and  deviL,j,  with 
certain  exceptions.  By  the  Act  of 
1887,  it  is  provided  that,  "  No  release, 
w-aiver  or  conveyance  of  the  estate 
so  exempted  shall  be  valid  "  unless  in 
writing  signed  by  the  husband  and 
wife,  duly  acknowledged,  etc.,  or  by 
order  of  court  in  case  of  a  minor's 
releasing,  etc. 


20(5  QUASI-KSTATE    OF    HOMESTEAD. 

with  restraint  upon  his  power  of  alienation.  It  was  a  right 
which  could  be  waived,  abandoned  or  terminated  in  modes 
provided  by  law.  Whether  the  legal  title  was  in  the  husband 
or  the  wife,  the  modes  were  applicable. 

This  mere  right  of  homestead  enjoyment  was  not  an  estate; 
it  was  not,  technically  speaking,  a  right  or  title  or  interest  to 
real  estate,  or  in  it.  The  owner's  title  for  years,  for  life,  or 
forever,  was  not  divested  by  subjecting  it  to  the  family  right  of 
homestead  enjoj^ment.  His  title  was  not  affected  by  the  re- 
straint upon  alienation.  Where  he  was  allowed  to  sell,  it 
must  be  subject  to  the  homestead  right,  which  was  held  to  be 
an  immediately  irremovable  incumbrance  (unless  the  special 
mode  prescribed  by  statute  was  employed),  but  which  did  not 
diminish  his  title.^ 

In  some  principal  aspects,  the  older  legislation,  under  which 
the  courts  did  not  recognize  "  estate  of  homestead,"  were  not 
materially  different  from  the  present  in  w^hich  the  term  is 
nominally  employed,  and  to  which  the  courts  attach  impor- 
tance. The  act  of  1851  provided:  "There  shall  be  exempt 
from  levy  and  forced  sale  under  any  process  or  order  from 
any  court  of  law  or  equity,  the  lot  of  ground  and  the  build- 
ings thereon  occupied  as  a  residence  and  owned  by  the  debtor, 
being  a  householder  and  having  a  family,  to  the  value  of  one 
thousand  dollars ;  .  .  .  and  no  release  or  waiver  of  such 
exemption  shall  be  valid  unless  in  writing,  subscribed "  by 
husband  and  wife  and  acknowledged  as  in  conveyances  of  real 
estate  "  as  conditions  to  the  alienation  of  the  homestead." 

The  term  "  estate  of  homestead  "  is  not  employed,  but  terms 
nearly  equivalent  are  used.  The  liability  of  any  excess  of 
value  beyond  the  limitation  is  the  same  under  both  that  and 
the  present  law.-^  It  was  liable  to  liens  under  both.^  And  by 
simple  comparison  of  the  tw^o  acts  (that  of  1851  and  that  of 

1  Warner    v.    Crosby,   89    111.   320,  498 ;  Shacklef ord  v.  Todhunter,  4  111. 

326-8;  Hewitt  v.  Templeton,  48  111.  Ap.  271 ;  Brown  v.  Keller,  32  111.  151; 

367 ;  McDonald   v.  Crandall,   43  111.  Blue  v.  Blue,  38  111.  9. 

231 ;  Coe  v.  Smith,  47  111.  225  ;  Hart-  2  Watson  v.  Doyle,  130  111.  415  ;  Mc- 

well  V.  McDonald,  69  111.  293 ;  Daw-  Donald  v.  Crandall,  43  111.  231 ;  Clark 

son  V.  Hayden,  67  111.  52 ;  Finley  v.  v.  Crosby.  6  111.  App.  102 ;  Haworth 

McConnell,  60  111.  259 ;  Boyd  v.  Cud-  v.    Travis,   67   111.    302 ;    Eldridge  v. 

derback,  31  111.  118:  Pardee  V.  Lind-  Pierce,    90    111.    478 ;     Hotclikiss    v. 

ley,  31   111.  174;  Allen  v.  Hawley,  66  Brooks.  93  111.  386. 

UL   164;  Deere  v.  Chapman,  25  111.  -iMoriarty  v.  Gait.  112  111.  377. 


THE    RIGHT    NOT    STKICTLY    AN    KSTATK.  267 

1873)  with  each  other,  and  both  with  intervening  acts,  it  will 
be  seen  that  there  is  no  very  radical  change  relative  to  the 
main  subject,  exemption. 

Justice  Davis,  of  the  nature  of  the  homestead  right,  said : 
"  It  cannot  in  an  absolute  sense  be  said  to  be  an  estate  in  the 
land ;  the  law  creates  none  and  leaves  the  fee  as  it  was  before, 
but  in  substance  declares  that  the  right  of  occupancy  shall  not 
be  disturbed  while  the  homestead  character  exists.  AVhile  this 
continues,  the  judgment  creditor  cannot  lay  his  hands  on  the  ; 
property,  nor  the  husband  sell  it  without  the  consent  of  his 
wife,  and  not  then  without  an  express  release,  on  the  part  of 
both,  of  the  benefits  of  the  law.  The  purpose  of  the  legisla- 
ture was  to  secure  a  homestead  for  the  family,  and  the  dispo- 
sition of  the  property,  either  by  judicial  sale  or  private  con- 
veyance, was  left  unaffected  except  so  far  as  was  necessary  to 
accomplish  this  object.  As  long  as  the  property  retained  its 
peculiar  character,  it  was  within  the  protection  of  the  law; 
but  the  exemption  fr  )m  sale  under  execution  or  by  deed  yex.- 
cept  with  homestead  waiver)  could  be  lost  by  abandonment  or 
surrender;  that  is  to  say,  by  acts  in jpaisy 

.  .  .  As  land  including  a  homestead  "  can  be  sold  by  the 
owner  subject  to  the  homestead,  so  a  judgment  is  a  lien  on 
the  land  subject  to  the  homestead,  and  the  land  or  fee  can  be 
sold  under  execution  subject  to  the  homestead ;  and  the  pur- 
chaser, as  in  the  case  of  a  deed  by  the  debtor  without  the 
waiver,  has  the  absolute  title  when  the  homestead  right 
ceases."  ' 

This  opinion  of  Judge  Davis  was  approvingly  quoted  in  an- 
other state  (whose  statutes  on  this  subject  were  similar  to 
those  which  he  had  expounded),  in  the  following  language: 
"  This  has  been  the  uniform  holding  of  this  court  up  to  the 
present  time ;  .  .  .  that  the  fee  remained  unaffected ;  or, 
rather,  not  divested  out  of  the  owner,  or  vested  in  those  claim- 
ing exemption,  and  was  therefore  liable  for  the  satisfaction  of 
debts  of  the  owner,  subject  to  the  right  of  homestead."  ^ 

1  Black   V.    Curran,   14  Wall.   463,  Donald,  69  111.  293,  in  which  it  is  said 

468-9,  Davis,  J.,  construing  III.  Stat. ;  that  the  United  States  Supreme  Court 

rendered,    1871 ;    citing    Hewitt    v.  in  Black  v.  Curran,  supra,  mistook 

Teinpleton,  48  111.  367  ;  Coe  v.  Smith,  tlie  Illinois  statute. 

47  111.  225.     Compare  Hartwell  v.  Mc-  -'  Flatt  v.  Stadler,  16  Lea,  371 ;  cit- 


26S  QIASI-ESTATE    OF    HOMESTEAD. 

The  legal  estate  of  the  head  of  the  family  may  be  sold  for 
his  debts,  while  the  homestead  right  of  occupation  and  enjoy- 
ment may  remain  to  him  and  his  family ;  that  is,  the  land  may 
be  sold,  subject  to  the  homestead  exemption  right  in  that  land ; 
or,  in  yet  other  words,  the  reversion  of  the  homestead  may  be 
sold.  AVhere  such  course  is  authorized,  there  is  no  inconsist- 
ency in  the  co-existence  of  the  legal  estate,  and  what  is  called 
the  homestead  estate,  in  the  same  real  property.' 

The  exemption  of  real  estate  from  sale  under  legal  process, 
during  the  life  of  the  beneficiary  and  that  of  his  widow,  and 
the  minority  of  his  children,  with  inhibition  of  alienation  un- 
less both  the  husband  and  wife  join  in  the  act,  does  not  neces- 
sarily preclude  the  sale  of  the  reversion  under  legal  process.- 

§  7.  New  Features  but  Not  New  Title. 

Under  the  rulings  of  another  state,  the  mere  right  of  exemp- 
tion, conferred  by  constitution  or  statute,  is  not  an  estate. 
The  assignment  of  homestead  is  to  designate  to  what  property 
the  exemption  attaches;  not  to  confer  estate  upon  any  one.^ 
Yet,  after  such  assignment,  the  property  possesses  new  char- 
acteristics which  qualify  it.  It  becomes  the  family  homestead, 
vested  in  the  head  of  the  family  as  the  representative  of  the 
members;  and  they,  with  him,  are  the  objects  of  the  protec- 
tion afforded  by  the  exemption.^ 

Following  the  same  line  of  argument  where  the  homestead 
holder  can  convey  the  fee,  the  homestead  right,  in  another 
state,  has  been  held  a  privilege  and  not  an  estate  of  home- 
stead.' 

ing  Jones  v,   Ragland,  4  Lea,  543;  heirs    cannot    divest  themselves    of 

Gilbert  v.  Cowan,  3  Lea,  203 ;  Hicks  their  right.     Farrow   v.  Fari'ow,  13 

V.  Peppei-,  1  Bax.  42.  Lea,  120. 

.       1  Gilbert    v.    Cowan,   3    Lea,   203 ;  3  Ex  parte  Ray,  20  S.  C.  246 ;  El- 

'  Mash  V.  Russell,  1  Lea,  543.  liott    v.    Mackorell,    19    S.    C.    289 ; 

-  Held   under  the   constitution    of  Youngblood  v.  Lathen,  20  S.  C.  370. 

Tennessee,  art.   11,  §  11,  and  act  of  ^ /h  re  Kennedy,  2  S.  C.  227 ;  Howze 

1879,  that  lands  of  debtor  may  be  v.  Howze,  2  S.  C.  229 ;  Ex  j)arte  Stro- 

sold 'subject   to  right  of  homestead,  bel,  2  S.  C.  311.   SVe  Hardin  v.  Howze, 

Flatt   V.    Stadler.    16   Lea,    371.     See  IS  S.  C.  74. 

Black  V.  Curran.  14  Wall.  4G9.     The  ^  lu    Kentucky,    the   owner   of    a 

sale  by  the  husband  alone  would  not  homestead  may  convey  the  fee.     He 

affect  the   wife's    homestead    right,  niay  invest  the  price  in  a  new  home- 

Rhea  v.   Rhea,  15   Lea,  527.     Minor  stead,  preserving  the  exemption.    At 


NEW     KKAl'UKKS    HUT    NOT    NKW     I ITLK.  209 

[n  several  states,  the  homestead  rif^ht  is  not  treated  as  an 
affirmative  one  but  rather  of  negative  character;  an  exemp- 
tion rather  than  positive  property  right ; '  but  the  wife's  home- 
stead interest  in  her  husband's  dedicated  property  is  held  to 
be  real  property  within  the  meaning  of  the  statute  for  the 
redemption  of  property  from  tax  sale.^  Her  right  is  said  to 
be  more  like  a  vested  interest  or  title  than  her  dower  right  is 
in  his  other  realty.' 

But  her  right  of  occupancy  after  his  death  is  not  a  right  in 
his  estate  taken  by  inheritance,  but  merely  a  personal  one  un- 
accompanied by  title  or  interest,  to  or  in  the  property/ 

The  nature  of  the  homestead  tenure  has  been  stated  sub- 
stantially as  follows :  Where  the  homestead  of  a  decedent  who 
owned  the  property  continues  to  his  widow  for  life  and  to 
his  children  during  their  minority,  and  then  goes  to  his  heirs 
by  the  laws  of  descent,  it  is  to  be  considered  a  particular  es- 
tate carved  out  of  the  estate  proper,  of  the  decedent.  That 
is,  while  in  the  hands  of  the  widow  and  minors,  it  is  such 
particular  estate.  Its  reversion  to  the  heirs  renders  it  quite 
different  from  personal  property  exempted  in  their  favor 
which  becomes,  theirs  unqualifiedly.'^ 

This  "  particular  estate ''  is  nothing  more  than  one  for  life 
or  for  years  carved  out  of  the  estate  in  fee.  The  court  mak- 
ing the  above  statement  has  deprecated  inquiry  into  the  pecul- 
iarities of  title,  as  unprofitable  and  misleading,  saying :  "  If  we 
look  beyond  the  essential  characteristics  of  a  homestead  .  .  . 
and  enter  upon  an  inquiry  as  to  the  tenure  upon  which  the 
right  of  occupancy  depends,  we  are  sure  to  contravene  this 

his  death,  the  homestead  goes  to  his  estate  in  fee  in  the  realty  set  apart  as 

widow  and  children,  with  its  exemp-  a  homestead  from  the  property  of 

tion  character  retained.     Indivisible  the  deceased  debtor.   Evans  v.  Evans, 

property  including  a  homestead  may  13   Bush,   587;    Pribble  v.   Hall,    13 

be  sold  by  order  of  court  and  $1,000  Bush,  66;  Brame  v.  Craig,  12  Bush, 

reserved  for  the  debtor  out  of  the  404. 

price.     Lear  v.  Totten,  14  Bush,  101 ;  i  Burns  v.  Keas,  21  la.  25? ;  Robin- 

Genl.  Stat.  Ky.,  ch.  38,  art.  13,  §§  12,  son  v.  Baker,  47  Mich.  619  (11  N.  W. 

13.     "  This  court  has  frequently  held  410). 

that  the  homestead  right  is  not  an  ^  Adams  v.  Beale,  19  la.  61. 

estate  in  the  land  but  a  mere  privi-  '  Chase  v.  Abbott,  20  la.  134. 

lege  of  occupancy."     Little's  Guard-  ^  Mahaffy  v.  Mahaffy,  63  la.  55. 

ian  V.  Woodward,  14  Bush,  588.    The  =  Hunter  v.  Law,  68  Ala.  365. 
widow  and  children  do  not  take  an 


270  quasi-p:state  of  homestead. 

policy" — the  policy  of  the  law  in  protecting  and  encouraging 
homestea'ls.^ 

§  8.  Trust  Estate. 

The  interest  of  the  family  in  the  property  dedicated  by  its 
head  has  been  declared  a  trust  estate. 

"  The  homestead  estate,  being  set  apart  for  the  use  and  ben- 
efit of  the  family,  is  in  the  nature  of  a  trust  estate;  and  when 
it  is  sought  to  subject  the  same  to  the  payment  of  an}' 
claim  for  which  it  may  be  liable,  the  party  must  file  his  peti- 
tion setting  forth  the  grounds  of  his  claim,  how  and  in  what 
manner  the  estate  is  liable,  and  the  names  of  the  cestui  que 
trusts.''''  ^ 

Considered  as  a  trust  estate,  the  equitable  owners  of  the 
homestead  are  the  members  of  the  family  —  the  beneficiaries, 
including  the  head.  The  legal  owner  of  the  land  on  which 
the  homestead  estate  is  based  is  the  husband  or  wife,  or  both; 
but  neither  could  have  homestead  set  apart  in  the  land  unless 
there  were  a  family.  The  number  of  the  members  is  imma- 
terial—  there  may  be  only  the  husband  and  wife — but  there 
must  be  a  family,  great  or  small,  since  it  is  for  that,  and  that 
only,  the  exemption  right  is  created.^ 

Homestead  and  dower  right  do  not  attach  to  the  naked 
legal  title  in  land  held  in  trust,^ 

§  9.  Qualified  Title. 

The  nature  of  homestead  is  virtually  the  same  in  all  the 
states  where  there  is  exemption  of  realty  from  execution,  and 
the  restraints  on  rights  of  ownership  usually  attending  it. 
Some  employ  the  term  "  estate  of  homestead,"  while  others 
use  different  ones,  but  everywhere  it  is  true  that  government 
confers  no  property,  title  or  interest  upon  the  householder,  but 
merely  qualifies,  or  enables  him  to  qualify,  what  he  possessed 
before.  His  fee  remains  his  fee,  shorn  of  its  alienability  to 
some  extent,  and  also  of  its  disposability  by  will  to  some  de- 
gree.    So,  if  his  title  is  less  than  the  fee.     It  will  be  observed 

1  Tyler  v.  Jewett,  83  Ala.  93,  100,  Wilder  v.  Frederick,  59  Ga.  669.  See 
quoting  Watts  v.  Gordon,  65  Ala.  546.  Dewhurst  v.  Wright  (Fla.),  10  So.  702. 
See  Discus  v.  Hall,  83  Ala.  159 ;  Beard  » Willingham  v.  Mayuard,  59  Ga. 
V.  Johnson,  87  Ala.  729.  330,  332. 

2  Wilson  V.   Rogers,   68    Ga.   549 ;  *  Rjce  v.  Rice,  108  111.  200. 


QUALIFIED    TITLE.  271 

that  the  qualifications  are  all  negative.  The  dedicated  prop- 
erty he  cannot  bequeath  freely  by  testament,  cannot  sell  by 
his  sole  act,  and  his  creditors  cannot  sell  it  for  his  debts. 
These  negative  qualifications  are  generally  made  in  the  home- 
stead states,  though  not  without  exceptions  as  to  some  of 
these  inhibitions.  The  })ositive  statement  of  a  statute  that  he 
shall  have  estate  of  homestead  forms  no  exception,  for  noth- 
ing but  restrictions  and  immunities  are  meant;  no  positive 
estate  is  conferred;  the  qualifications  of  title  already  held  are 
negative,  as  in  the  states  where  such  estate  is  not  recognized. 
It  may  be  said  to  be  as  nearly  uniform  as  anything  in  home- 
stead law  is,  that  the  legal  owner  of  the  homestead  has  his 
interest  afi^ected  negatively  only  when  he  dedicates  it  and  ac- 
cepts the  conditions. 

The  interest  of  the  minor,  while  his  parents  live,  is  no  prop- 
erty-right in  or  to  the  homestead.  They  can  dispose  of  it 
without  affecting  any  right  of  his  which  he  can  assert,  or  his 
next  friend  or  the  probate  or  orphans'  court  can  assert  against 
their  action.  After  his  parents'  death,  leaving  the  property 
unsold,  he  cannot  make  any  disposition  of  it  whatever.  Adult 
heirs  are  held  aloof  while  he  occupies  the  premises.  If  there 
is  any  estate  of  homestead  now,  held  by  him  in  any  way  dif- 
ferent from  that  held  by  his  co-heirs  who  are  adults,  it  can  be 
nothing  but  the  defeasible  right  of  occupancy  for  a  term  of 
years  —  and  this  can  hardly  be  termed  an  estate  in  contradis- 
tinction from  the  legal  estate  which  all  the  heirs  in  common 
hold. 

The  widow's  homestead  comes  more  nearly  to  the  require- 
ments of  any  estate  than  those  already  considered.  It  is  usu- 
ally held  for  life ;  defeasible  by  abandonment,  generally  —  by 
remarriage,  less  generally  —  by  neither,  in  a  few  states.  There 
is  nearly  as  much  plausibility  in  calling  her  limited  homestead 
interest  an  estate  as  there  is  in  attributing  the  term  to  her 
dower  right.  It  has  negative  qualities  which  the  latter  wants : 
non-liability  for  debt ;  and  non-alienability,  for  the  most  part ; 
but  there  is  positivity  in  the  creation  of  this  new  twin-sister 
to  dower.  So  the  widow's  right  may  be  called  a  life-estate 
without  violence  to  any  principle. 

The  right  to  occupancy  of  the  homestead,  or  the  receipt  of 
the  rents  and  profits,  cannot  be  alienated  by  the  widow,  though 


272  QUASI-KSTATE    OF    HOMESTEAD, 

it  may  be  abandoned  by  her.  She  cannot  sell ;  she  cannot 
abandon  the  rights  of  the  minor  children ;  but  she  can  give 
up  her  own  right,  and  an  abortive  attempt  to  alienate  it  may 
be  abandonment  in  the  eye  of  the  law. 

Her  right,  under  the  provision  above  mentioned,  is  lim- 
ited to  the  usufruct  (wholly  hers  when  there  are  no  minor 
children),  free  from  liability  to  forced  sale.  This  continues 
during  her  life.  The  purpose  is  to  give  her  a  home  and  sup- 
port :  so  she  need  not  occupy  the  premises  to  preserve  their 
inviolable  character^  but  may  lease  them,  since  she  may  thus 
make  them  more  conducive  to  effect  the  benevolent  purpose 
of  the  law  towards  her.  She  is  not  obliged  to  cultivate  a 
farm  or  live  upon  it  to  preserve  its  character  as  exempt  land. 
If  she  could  legally  alienate  the  homestead  property,  the  ex- 
emption benefit  would  not  appertain  snnply  to  the  homestead 
right  but  would  be  a  reservation  of  land  from  forced  sale 
without  regard  to  its  use.  If  she  attempts  to  convey  the  prop- 
erty, she  forfeits  her  homestead  right  as  in  case  of  direct  aban- 
donment.^ 

The  homestead  for  the  widow  may  be  set  apart  from  any 
portion  of  the  decedent's  estate  Avhich  is  suitable  for  the  pur- 
pose, though  it  may  have  been  used  by  him  as  a  place  of  busi- 
ness.- As  to  suitability  for  the  purpose,  the  court  trying  an 
appealed  case  will  presume  the  evidence  to  have  been  suffi- 
cient to  establish  it  and  thus  to  support  the  order  setting  apart 
the  property.' 

§  10.  Exemption  and  "Estate  of  Homestead." 

A  husband  and  wife  resided  upon  a  lot  in  San  Francis(5t),  in 
a  dwelling  situated  on  the  front  part  of  it.  The  property  was 
owned  by  both  in  community.  The  wife  had  it  recorded  as 
their  homestead.     Afterwards  they  built  another  dwelling  on 

1  Garibaldi  v.  Jones,  48  Ark.  231;  of  Busse,  '^5  Cal.  310;  and  distin- 
Phipps  V.  Acton,  12  Bush  (Ky.),  375 ;  guishing  In  re  Noah,  73  Cal.  590. 
Locke  V.  Rowell,  47  N.  H.  46 ;  Wright  ^  In  re  Sharp,  supra;  Ferrer  v. 
V.  Dunning,  46  111.  271 ;  Whittle  v.  Insurance  Co.  47  Cal.  429 ;  Livermore 
Samuels,  54  Ga.  548 ;  Orman  V.  Orman,  v.  Webb,  56  Cal.  492;  Tompkins  v. 
26  la.  361.  See  Craddock  v,  Edwards,  Weeks,  26  Cal.  58 ;  In  re  Bowman, 
81  Tex.  609.  69  Cal.  245 ;  Bunting  v.  Beideman,  1 

2  In  re  Sharp,  78  Cal.  483,  approving  Cal.  182 ;  Cal.  Code  Proc,  §  1465  et 
In  re  Bowman,  69  Cal.  245;  Estate  s-eg.;  Civ.  Code,  tit.  5,  div.  2. 


EXEMPTION    AND    "ESTATE    OF    HOMESTEAD.  3  ( •> 

the  rear  part  of  the  lot  and  rented  it  to  a  tenant.  Then  a, 
judgment  creditor  of  the  husband  levied  upon  the  wliole  lot. 
The  wife  enjoined  the  sale,  alleging  that  the  whole  property 
was  within  tlie  value  of  the  homestead  limit  —  five  thousand 
dollars.  By  agreement  the  whole  case  seems  to  have  been 
disposed  of  on  the  trial  of  the  injunction. 

It  was  held  that  while  the  declarant  of  homestead  cannot 
include  two  dwellings  in  his  declaration,  if  he  subsequently 
add  another  to  the  one  he  has  legally  dedicated  and  occupied, 
the  effect  will  be  not  to  vitiate  the  property  first  declared  upon 
when  the  second  house  stands  on  a  part  of  the  dedicated 
ground.  The  whole  will  not  thus  be  subjected  to  execution 
for  debt.  And  it  was  held  the  second  house,  though  rented 
to  a  tenant,  will  not  be  so  subject,  unless  it  enhance  the  value 
of  the  whole  property  beyond  the  statutory  limit ;  or,  rather, 
unless  the  property  be  worth  five  thousand  dollars  without 
the  new  house  and  the  ground  it  stands  upon.  The  method 
of  segregation,  in  such  case,  is  pointed  out  by  statute. 

The  following  extract  is  from  the  opinion  of  the  court : 
"  The  whole  lot  being  adapted  to  use  as  a  homestead,  and  act- 
ually used  as  such  at  the  time  of  the  dedication,  it  then  be- 
came as  an  entirety  affected  with  the  homestead  character. 
And  this  is  so  without  regard  to  the  value  of  the  lot,  either  at 
the  time  of  its  dedication  or  at  any  subsequent  period.  There 
is  no  statutor}^  Imiit  as  to  the  value  of  the  property  which 
may  be  selected  and  upon  which  the  character  may  be  im- 
pressed. When  the  attributes  of  residence  and  selection  ac- 
cording to  law  exist  so  as  to  express  its  essence,  the  homestead 
becomes  an  estate  in  the  premises  selected,  exempted  by  law 
from  forced  sale.  They  may  be  of  greater  or  less  value  than 
the  interest  in  them  exempted  by  law.  The  excess,  if  there 
be  one,  though  it  may  be  homestead  in  fact,  is  subject  to  the 
jus  disponendi  of  the  owner  and  the  claims  of  his  creditors.' 
But  it  does  not  follow  that  the  excess  in  value  is  subject  to 
seizure  and  sale  at  the  instance  of  an  execution  creditor.  If 
the  propert}'^  so  impressed  with  the  character  of  homestead  is 
worth  more  than  the  homestead  exemption,  and  the  creditor 
desires  to  avail  himself  of  that  excess,  the  proceedings  pro- 

1  Citing  Ham  v.  Santa  Kosa  Bank,  62  Cal.  U9. 
18 


274  QUASI-ESTATE    OF    HOMESTEAD. 

videcl  by  the  code^  must  be  taken  for  the  admeasurement  and 
application  of  such  excess.-  It  follows  that  a  sale,  unless  made 
under  order  of  court,  and  for  purposes  of  segregation  of  the 
excess  as  provided  in  the  sections  referred  to,  would  convey 
no  title.  But  though  the  sale  of  a  homestead  under  execution 
conveys  no  title,  it  may  create  a  cloud  and  involve  the  home- 
stead claimant  in  litigation,  and  will  therefore  be  enjoined.' 

"  So  far  as  we  have  been  able  to  discover,  no  case  has  be- 
fore arisen  under  our  statutes  where  the  precise  question  now 
submitted  has  been  presented.  In  every  case  where  it  has 
been  held  that  a  second  tenement  used  for  purposes  other 
than  the  residence  of  the  family  has  operated  to  prevent  the 
homestead  character  from  attaching  to  such  second  tenement 
and  the  land  used  in  connection  therewith,  such  second  tene- 
ment existed  at  the  time  of  the  attempted  homestead  selec- 
tion, and  was  not  one  constructed  after  the  homestead  charac- 
ter had  attached  to  the  land.  Here  the  homestead  character 
had  attached  before  the  second  building  was  constructed,  and, 
reasoning  from  the  analogy  of  the  statutes  and  of  the  cases 
cited,  the  construction  of  such  a  building  was  not  an  act  which 
relieved  it  of  the  homestead  character,  and  rendered  the  land 
subject  to  direct  seizure  and  sale  under  exemption."  And  the 
court  adds  that  if  the  second  building  had  increased  the  value 
of  the  whole  property  beyond  the  statutory  limit,  the  plaint- 
iff would  have  been  entitled  to  make  the  levy,  but  not  to  sell; 
only  as  a  basis  for  proceedings  under  the  statute  to  ascertain 
the  excess,  to  make  partition,  and  for  sale  of  the  part  not  nec- 
essary to  make  up  the  maximum.^ 

Judge  Paterson  dissented,  saying  it  was  immaterial  whether 
the  second  house  was  built  before  or  after  the  declaration; 
that  the  sole  question  before  the  court  was  whether  the  prop- 
erty was  exempt ;  that  the  statute  provides  that  the  homestead 
shall  consist  of  "  the  dwelling-house  in  which  the  claimant  re- 
sides and  the  land  on  which  the  same  is  situated ;  "  *  and  the 

1  Citing  Civ.  Code,  §§  1245-1259.  <  Lubbuck  v.  McMann,  82  Cal.  226, 

2  Citing  Barrett  v.  Simms,  62  Cal.     Fox,  J. 

440.  ^Citing  Civ.   Code  Cal.,   ^§  1237, 

3  Citing  Culver  v.  Rogers,  28  Cal.  1240 ;  Gregg  v.  Bostvvick,  33  Cal.  228 ; 
520;  Eby  v.  Foster,  61  Cal.  287.  S.  C,  91  Am.  Dec.  637;  Laughlin  v. 

Wright,  63  Cal.  116. 


EXEMPTION    AND    "ESTATE    OF    UOMESTEAD."  275 

dissenting  opinion  concludes  as  follows:  "  It  has  been  held  uni- 
formly that,  in  order  to  be  exempt  from  execution,  the  prop- 
erty claimed  as  a  homestead  must  be  actually  occupied  as  a 
residence  by  the  famil}^  of  the  owner  —  temporary  absences 
excepted,  of  course  —  and  that  any  portion  of  his  real  estate 
not  so  used  is  not  exempt  from  execution,  Avhatever  may  be 
its  extent  or  value ;  and  that  where  houses  and  lots  are  rented 
for  money  rent  to  tenants  who  are  not  servants  or  employees 
of  the  owner,  the  latter  cannot  claim  them  as  a  part  of  his 
own  home  and  residence,  although  they  may  adjoin  the  same."  ' 

The  differences  between  the  two  opinions  turn  upon  the 
definition  of  homestead.  The  word  is  used  in  the  constitution 
in  its  ordinary  sense :  "  The  legislature  shall  protect  b}'"  law 
from  forced  sale  a  certain  jportion  of  the  homestead .,  and  other 
property  of  all  heads  of  families."  ^  The  statute  employs  the 
term  in  its  technical  sense,  as  will  be  seen  in  the  requirements 
for  its  selection,  dedication,  alienation,  exemption  and  various 
provisions  inapplicable  to  an  ordinary  place  of  residence.' 

The  court  used  the  word  in  the  common,  and  the  dissentinor 
judge  used  it  in  the  legal,  sense.  So  the  court  understood  the 
entire  family  residence,  irrespective  of  value  or  quantity,  to 
be  susceptible  of  dedication  so  as  to  constitute  an  estate  of 
homestead,  though  only  the  value  to  the  amount  of  five  thou- 
sand dollars  would  be  exempt  under  the  statute.  On  the 
other  hand,  the  dissenting  judge  recognized  only  the  exempt 
portion  to  be  susceptible  of  dedication  as  homestead. 

Courts  in  other  states,  under  statutes  not  materially  dis- 
similar, will  be  likely  to  understand  homestead  as  the  dissent- 
ing judge  did,  as  they  have  understood  it  heretofore.  Even 
where  "  estate  of  homestead  "  is  recognized,  it  will  generally 
be  confined  to  exempt  property,  while  that  which  is  not  ex- 
empt will  be  held  liable  to  execution,  whether  attached  to  the 
home  farm  or  lot,  or  disconnected. 

1  Citing  Ashton  v.  Ingall,  20  Kas.  2  Const  Cal.,  art  17,  §  1. 

670;  Austin  V.Stanley,  46  N.  H.  51;  SDeering's    Code     &     Stat    Cal., 

Kurz  V.  Brusch,  13  Kas.  371 ;  S.  C,  §§  1237-1263.    See  especially,  §§1237, 

81    Am.    Dec.    485 ;    Casselman    v.  1240,  Civ.  Code. 
Packard,  16  Wis.  114;  S.  C,  82  Am. 
Dec.  710. 


CHAPTER  X. 


LIABILITIES. 


§1. 
2. 


Debts  Prior  to  the  Law. 
Debts  Prior    to  Purchase    and 
Occupancy. 

3.  Debts  Prior  to  Filing  the  Deed. 

4.  Debts  Prior  to  Designation  of 

Homestead. 

5.  Debts  by  Written  Contract 

6.  Dormant  Liens. 

7.  Attachment  Liens. 

(1)  Claiming  Homestead  After 
Attachment. 


§  7.  Attachment  Liens  (continued). 

(2)  Attaching     After    Home- 

stead Has  Been  Estab- 
lished. 

(3)  Effect    of    the    Perfected 

Attachment  Lien  Upon 
the  Homestead. 

8.  Tort 

9.  Fiduciary  Debts. 
10.  Taxes. 


§  1.  DeMs  Prior  to  the  Law. 

Antecedent  debts  are  those  prior  to  the  passage  of  the 
homestead  law  or  to  the  date  fixed  by  the  law  for  the  begin- 
ning of  exemption.  They  are  debts  contracted,  or  incurred, 
before  notice  given  that  the  family  residence  is  not  to  be  liable 
therefor.  The  enactment  of  the  exemption  statute  is  deemed 
such  notice  on  the  presumption  that  creditors  know  the  law. 

It  seems  almost  incredible  that  legislatures  and  courts  ever 
have  thought  that  a  creditor  could  be  cut  off  from  making  his 
money  out  of  property  to  which  he  had  looked  when  trusting 
its  owner.  Without  any  notice  whatever  that  such  property 
would  be  screened  from  the  sheriff's  eye  by  the  veil  of  exemp- 
tion, he  had  trusted  the  owner.  The  legislatures  of  several 
states  —  even  the  conventions  that  made  constitutions  —  seem 
to  have  seen  no  injustice  in  cloaking  the  property  of  debtors 
with  exemption,  and  leaving  unnotified  creditors  in  the  lurch. 

Solemn  contracts  between  debtors  and  creditors,  with  im- 
plication that,  if  necessary,  all  the  means  of  the  former  should 
be  exhausted  in  payment  of  value  received,  were  disregarded 
by  the  obligor  under  countenance  of  legislation.  It  was  not 
till  the  highest  court  of  the  country  had  declared  such  legis- 
lation unconstitutional,  that  those  laws  were  abrogated,  and 
debtors  left  to  the  old  rules  of  integrity. 


DEBTS   PRIOR   TO   THE    LAW.  277 

There  seemed  to  bo  a  notion  that  creditors  had  no  rights 
which  debtors  were  bound  to  regard.  There  was  an  impres- 
sion tliat  contracts  liad  no  reference  to  their  remedies  which 
legislators  were  bound  to  recognize.  The  principles  of  equity, 
apart  from  the  constitutional  inhibition  to  pass  laws  impair- 
ing the  obligations  of  contracts,  ought  to  have  controlled  the 
courts,  especially  when  mortgages  and  other  liens  under  equity 
cognizance  were  concerned.  But  homestead  and  exemption 
laws  had  to  be  considered  as  something  outside  of  the  ordinary 
realm  of  jurisprudence,  exceptional  to  established  principles, 
based  u[)on  humanity  rather  than  upon  justice  —  with  the 
humanity  confined  to  one  of  the  contracting  parties. 

In  what  sense  would  a  contract  be  impaired  by  the  subse- 
quent passage  of  a  law  exempting  from  execution  property 
that  was  liable  before  under  the  contract?  What  is  the  rea- 
son that  underlies  the  decisions  of  the  highest  court  declaring 
such  a  law  unconstitutional? 

The  contract  would  be  impaired  because  the  creditor's  rem- 
edy against  the  debtor's  property,  existing  when  the  contract 
was  made,  would  be  taken  away  to  the  extent  of  the  exemp- 
tion; and  the  reason  underlying  the  decisions  is  that  the 
debtor's  property  is  the  common  pledge  of  his  creditors.  It 
is  that  which  gives  its  owner  credit.  Creditors  trust  his  prop- 
erty rather  than  himself. 

Homestead  laws  have  been  said  to  be  in  derogation  of  com- 
mon right  because  they  interfere  with  the  creditor  in  his  ef- 
forts to  collect  his  just  debts.  While  the  argument,  drawn 
from  this  consideration,  in  favor  of  the  strict  construction  of 
exemption  laws,  does  not  meet  with  general  favor ;  and  while 
it  is  entitled  to  little  when  the  exemption  law  has  been  passed 
and  the  homestead  dedicated  and  the  world  notified  before 
the  giving  of  the  credit  by  contract,  yet  it  is  true  that  the 
debtor's  property,  liable  for  debt  before  the  passage  of  an  ex- 
emption law,  cannot  have  its  stahis  changed-in  that  respect  by 
the  passage  of  the  law,  without  derogation  of  the  creditor's 
right. 

The  laws  that  sought  to  deprive  the  creditor  of  his  remedy 
and  relieve  the  debtor  of  his  promise  were  retroactive.  They 
referred  to  future  executions,  it  is  true;  but  they  looked  back 
to  contracts  anterior  to  themselves.     A  claim  perfectly  good 


278  LIABILITIES. 

yesterday  is  reduced  in  value  from  par  to  zero  by  a  law  passed 
to-day :  a  practical  retroaction  though  not  technically  such  as 
would  be  violative  of  the  constitution.  A  contract  with  a 
perfect  legal  remedy  yesterday  is  shorn  of  its  means  of  en- 
forcement and  therefore  rendered  valueless  to-day :  an  impair- 
ment which  the  spirit  of  the  constitution  forbids. 

The  ground  of  unconstitutionality  was  found  in  the  prohibi- 
tion of  the  states  from  passing  any  law  impairing  the  obliga- 
tion of  contracts.  It  was  held  to  be  impairment  when  the 
creditor's  remedy  is  denied  him.  It  is  as  bad  for  him  to  lose 
his  means  of  enforcement  as  to  have  the  contract  itself  de- 
stroyed. The  old  homestead  laws  which  put  liable  property 
out  of  the  way  and  even  declared  it  inviolate  cut  straightl}^  be- 
tween the  contract  and  the  remedy,  severed  them  from  each 
other,  and  left  a  useless  promise  in  the  hands  of  the  creditor 
while  the  means  of  performance  were  gone.  That  is,  this  was 
true  unless  he  could  find  other  property  to  pounce  upon.  But 
the  laws  were  as  bad  as  if  they  had  denied  execution  alto- 
gether ;  for  it  might  be  that  the  debtor  had  no  property  but 
his  homestead. 

"  The  remedy  subsisting  in  a  state  when  and  where  a  con- 
tract is  made  and  is  to  be  performed  is  a  part  of  its  obliga- 
tion', and  any  subsequent  law  of  the  state  which  so  affects 
that  remedy  as  substantially  to  impair  and  lessen  the  value  of 
the  contract  is  forbidden  by  the  constitution  and  is  therefore 
void."  This  was  said  by  the  highest  court  of  the  country 
relative  to  a  state  constitutional  inhibition  of  "  execution  or 
other  final  process  issued  for  the  collection  of  any  debt  against 
a  homestead  "  of  the  certain  value  designated.  There  had 
been  judgment  rendered  on  debts  contracted  prior  to  the 
adoption  of  that  inhibition,  and  the  state  court  had  held  the 
homestead  not  liable  for  them;  and  the  above-quoted  remark 
was  made  in  the  reversing  decision.^ 

This  decision  was  in  accord  with  a  prior  one  rendered  by 
the  same  court.^  The  doctrine  enunciated,  that  the  remedy 
is  part  of  the  obligation,  and  state  laws  impairing  it  are  in 
contravention  of  the  constitution  of  the  United  States,  is  now 

1  Edwards  v.  Kearzy,  96  U.  S.  595        2Gunn  v.  Barry,  15  Wall.  610. 
(case  from  North  Carolina,  74  N.  C. 
241). 


DEBTS   PRIOR   TO   THE    LAW.  279 

well  established,  and  applied  to  homestead  laws  and  exemp- 
tions.^ 

The  constitutional  inhibition  is  to  states  —  not  expressly  to 
congress.  Whatever  tl?e  spirit  of  it  may  be,  however  congress 
or  the  general  government  entire  may  be  constrained  by  that 
spirit  from  doing  injustice,  the  letter  bears  only  upon  the 
states.  It  is  hardly  presumable  that  the  framers  of  the  consti- 
tution meant  to  invest  congress  with  the  power  of  coming 
between  contracting  parties  and  rendering  their  mutual  obli- 
gations nugatory  Avhich  were  perfectly  valid  when  taken.  So 
far  as  passing  uniform  bankrupt  laws,  the  framers  did  mean 
that  congress  might  intervene  between  debtor  and  creditor. 
If  further  intervention  was  to  be  tolerated,  why  did  they 
not  say  so?  Why  did  they  confine  the  grant  to  the  bankrupt 
law? 

It  is  the  prevailing  opinion,  however,  that  congress  can  af- 
fect the  remedy  of  a  contract.  The  supreme  court  said  dis- 
junctively:  "Nor  can  it  be  truly  said  that  congress  may  not, 
by  its  action,  indirectly  impair  the  obligation  of  contracts,  if 
by  the  expression  be  meant  rendering  contracts  fruitless  or 
partially  fruitless.  Directly  it  may,  confessedly,  by  passing  a 
bankrupt  act,  embracing  past  as  well  as  future  transactions. 
This  is  obliterating  contracts  entirely."  ^ 

If  it  is  possible  for  congress  constitutionally  to  obliterate 

iLamb  v.  Chamness,  84  N.  C.  379;  Whittington  v,  Colbert,  TO  Ga.  584; 

Sluder  v.  Rogers,  64  N.  C.  289 ;  Fow-  Chanibliss    v.    Jordan,    50    Ga.    81 ; 

ler  V.  Wood,  81  S.  C.  398 ;  Ex  parte  Larence  v.  Evans,  50  Ga.  216 ;  Gunn 

Young,  29  S.  C.  298 ;  Bull  v.  Rowe,  13  v.  Thornton,   49  Ga.    380 ;  Jones  v. 

S.  C.  365 ;  Douglass  v.  Craig,  13  S.  C.  Brandon,  48  Ga.  593 ;  Ladd  v.  Dud- 

371 ;  Carrigan  v.   Bozeman,  13  S.  C.  ley,  45  N.  H.  61 ;  Squire  v.  Mudgett. 

376 ;  Charles  v.  Charles,  13  S.  C.  385 ;  61  N.  H.  149 ;  The  Homestead  Cases. 

Cochran  v.  Darcy,  5  S.  C.  125 ;  Ex  22  Gratt   266 ;  Russell  v.  Randolph, 

parte  Hewett,  5  S.   C,   409 ;  De  La  26  Gratt  705 ;  Pennington  v.  Seal,  49 

Howe  V,  Harper,  5  S.  C.  470 ;  Comp-  Miss.  528 ;  Lesley  v.  Phipps,  49  Miss, 

ton  V.  Patterson,  28  S.  C.  115;  Has-  790;  Smith  v.  Brown,  28  Miss.  813; 

fordv.Wynn,  26  S.  C.  130;  Agnew  v.  Coffman  v.   Bank  of  Kentucky,  40 

Adams,  17  S.  C.  364 ;  Clark  v.  Tra-  Miss.  29 ;  Barlow  v.  Gregory,  31  Ct 

wick,56Ga.  359;  Wlieelerv.  Redding,  264;    Clark  v.  Potter,   13  Gray,  21; 

55  Ga.  87  ;  Bush  v.  Lester,  55  Ga.  579  ;  Woods  v.  Sanford,  9  Gray,  16 ;  John- 

Pratt  V.  Atkins.  54  Ga.  569 ;  Wofiford  son  v.  Fay,  16  Gray,  144. 
V.  Gaines,  53  Ga.  485 ;  Grant  v.  Cosby,        -  Strong,  J.,  in  Legal  Tender  Cases, 

51  Ga.  460 ;  Smith  v.  Ezell,  51  Ga.  12  Wall.  457 ;  Hepburn  v.  Griswold, 

570 ;  Burnside  v,  Terry,  51  Ga.  186 ;  8  Wall.  603. 


280  LIABILITIES. 

contracts  entirely,  it  can  be  done  only  by  way  of  enacting  a 
bankrupt  law :  so  that  has  nothing  to  do  with  "rendering 
contracts  fruitless  "  in  any  other  way. 

It  has  been  held  that  vested  rights  may  be  divested  by  a 
state  law,  when  a  contract  is  not  impaired.' 

Some  of  the  old  laws  and  decisions  thereon  disregarded 
judgments  rendered  on  debts  existing  ])rior  to  the  passage  of 
the  exemption  statutes,  disregarded  attachments  duly  laid 
and  even  judgment  liens  already  matured,  and  even  pre-exist- 
ing mortgages.  No  agreement  between  debtor  and  creditor 
was  too  sacred  to  be  touched.  All  right  and  equity  was  dis- 
regarded under  the  legislator's  assumption  that  it  was  a  hu- 
mane and  beneficent  policy  for  the  state  to  stej)  between  the 
creditor  and  the  debtor  to  protect  the  latter  from  the  conse- 
quences of  his  own  voluntarily -taken  obligations.  The  courts, 
as  if  they  thought  the  state  legislatures  unrestricted  in  power, 
sustained  such  laws  and  denied  creditors  the  right  of  enforc- 
ing their  contracts  in  many  instances.^ 

The  assignment  of  a  homestead  to  a  bankrupt  is  void  as  to 
debts  antedating  the  authorization  of  a  homestead.'' 

It  was  held  that  the  debtor's  homestead  was  exempt  from  a 

1  Beers  v.  Haughton,  9  Pet.  35  D;  40  Pa.  St.  328;  Baylor  v.  San  An- 
Watson  V.  Mercer,  8  Pet.  88.     {Con-    tonio  Bank,  38  Tex.  448. 

tra,  Gunn  v.  Berry,  15  Wall.  619,  by  3  Fowler  v.  Wood,  31  S.  C.  398.     (See 

way  of    argument.)     See    Allen    v.  Fowler  v.  Wood,  26  S.  C.  169.)    Ante- 

-Shields,   72    N.    C.    504;    Wilson  v.  homestead   debts  in  South  Carolina 

Sparks,  72  N.  C.  208 ;  Garrett  v.  dies-  are  those  contracted  before  the  adop- 

hire,  69  N.  C.  396.  tion    of    the    constitution    of    1868. 

2  Gunn  V.  Barry,  44  Ga.  853 ;  Pull-  Douglas  v.  Craig,  13  S.  C.  371.  But  a 
iam  V.  Sewell,  40  Ga.  73;  Chambliss  senior  lienholder,  with  claim  prior  to 
V.  Phelps,  39  Ga.  386 ;  Hardeman  v.  1868,  need  not  first  exhaust  the  home- 
Downer,  39  Ga.  425 ;  Hill  v.  Kessler,  stead.  Ex  parte  Young,  29  S.  C.  298. 
63  N.  C.  437 ;  Ee  Kennedy,  2  S.  C.  The  creditor  may  enforce  his  ante- 
216;  Stephenson  V.  Osborne,  41  Miss,  homestead  claim  by  legal  remedy, 
119:  Sneider  v.  Heidelberger,  45  Ala.  and  therefore  is  denied  resort  to  an 
126;  Gi-imes  v.  Bryne,  2  Minn.  89;  equity  proceeding  to  vacate  home- 
Rockwell  V.  Hubbell,  2  Doug.  (Mich.)  stead  proceedings.  Compton  v.  Pat- 
198;  Root  V.  McGrew,  3  Kas.  215;  terson,  28  S.  C.  115.  Assignment  of 
Cusic  V.  Douglas,  3  Kas.  123 ;  Cook  homestead  is  null  as  to  debts  prior  to 
V.  McChristian,  4  Cal.  23 ;  Bigelow  v.  1868.  Hosford  v.  Wynn,  26  S.  C.  130 ; 
Pritchard,  21  Pick.  174;  Morse  v.  Agnew  v.  Adams,  17  S.  C.  364.  Cred- 
Goold,  11  N.  Y.  281.  (.See  Quacken-  iters' rights  lost  by  Zac/tes.  Solomons 
bush  V.  Danks,  1  Denio,  128.)    Hill  v.  v.  Shaw,  25  S.  C.  113. 

Hill,  42  Pa.  St  198 ;  Baldy's  Appeal, 


DEBTS    PRIOR    TO    THE    LAW.  281 

judgment  rendered  on  an  account  in  which  some  of  tlie  items 
were  for  antecedent  debts  and  some  subsequent  to  the  date 
when  the  statute  came  into  operation,^  Had  the  court  given 
judgment  for  the  former  only,  tlie  right  of  execution  woukl 
have  been  clear;  but,  having  allowed  the  whole  amount,  and 
forced  sale  to  pay  the  subsequent  debts  being  inhibited,  the 
property  was  protected  from  the  entire  judgment  in  the  opin- 
ion of  the  court. 

An  antecedent  debt,  novated  after  the  passage  of  the  ex- 
emption act,  may  be  collected  by  forced  sale  of  the  home- 
stead.- A  judgment  rendered  after  the  passage  is  not  to  be 
hindered  by  exemption,  if  the  creditor  prove  that  the  debt  was 
contracted  before.^ 

A  land-owner  obligated  himself  by  contract  when  he  was 
unmarried  and  not  entitled  to  exemption.  Before  judgment 
had  been  rendered  against  him,  he  took  a  wife,  became  the 
head  of  a  family  and  was  entitled  to  exemption.  When  ex- 
ecution was  levied  against  his  land  (owned  and  not  exempt 
when  the  debt  was  contracted),  he  claimed  that  it  was  exempt. 
The  value  of  the  land  was  within  the  constitutional  and  statu- 
tory limit. 

The  creditor  contended  that  the  land  was  liable  upon  debts 
contracted  before  the  debtor's  marriage.  The  court  said  that 
debts  existing  at  the  time  of  the  enactment  of  the  homestead 
law  could  not  be  affected  by  the  enactment,  and  it  claimed  to 
be  in  advance  of  the  United  States  supreme  court  in  so  hold- 
ing;^ but  it  decided  that  debts  originating  after  the  enactment 
are  on  an  entirely  different  footing.  Marriage  may  put  the 
debtor  in  a  position  to  avail  himself  of  the  exemption  which 
the  creditor  knew  he  could  have  by  getting  married.  JSTo  lien 
had  attached  to  the  property  before  the  marriage;  none  could 
attach  afterwards  by  virtue  of  the  judgment.^  Had  a  lien  been 
acquired  by  judgment  or  levy  before  marriage,  a  different 
question  would  have  arisen,  on  which  the  court  thought  it  un- 

1  Bachman  v.  Crawford,  3  Humph,  on  this  matter,  Kennedy  v.  Stacey,  1 
213.  Bax.   220;   Hannum  v.    Melnturf,  6 

2  Woodlie  V.  Towles,  9   Bax.  592 ;     Bax.  225. 

Belote  V.  Wynne,  7  Yer.  543 ;  Bell  v.  ^  Id.,  citing   North  v.    Shearon,  15 

Morrison,  1  Pet.  351.  Tex.  174;  Trotter   v.  Dobbs,  38  Miss. 

3  Douglass  V.  Gregg,  7  Bax.  384  198. 
<  Dye  V.  Cook,  88  Tenn.  275 ;  citing 


282  LIABILITIES. 

necessary  to  intimate  an  opinion.'     Sucli  lien,  legally  created, 
would  seem  as  stable  as  a  conventional  one. 

§  2.  Debts  Prior  to  Purchase  and  Occupancy. 

In  some  of  the  states,  the  homestead  is  exempt  from  ordi- 
nary debts,  and  all  others  except  a  few  specified  ones  to  be  spe- 
cially treated  in  this  chapter,  which  have  been  created  after 
the  passage  of  the  exemption  statute  or  constitutional  ordi- 
nance so  providing,  or  after  the  date  fixed  for  the  exemption 
to  become  operative.  A  provision  that  "  the  homestead  may 
be  sold  for  debts  contracted  prior  to  the  purchase  thereof  "  ^ 
was  construed  to  render  the  property  liable  for  any  debt  ante- 
dating not  only  the  purchase  but  the  establishment  of  the 
homestead  by  actual  occupancy.  The  statute  thus  construed 
directs  that  declaration  be  made,  but  does  not  render  it  essen- 
tial ;  so  it  is  held  that  the  date  of  occupancy  fixes  the  time  of 
the  beginning  of  exemption.^  This  accords  with  the  general 
doctrine  —  actual  occupancy  being  almost  everywhere  essen- 
tial to  exemption,  and  the  two  beginning  together.  Under 
the  operation  of  this  rule,  between  the  dates  of  purchase  and 
occupancy  the  property  is  liable  for  debts  then  or  'previously 
contracted.^  The  rule  is  the  same,  whether  the  debt  be  for- 
eign or  domestic.^ 

A  householder  obtained  title  to  his  homestead  in  1SS3.  A 
judgment  had  been  rendered  against  him  in  1882,  and  the  sub- 
sequently purchased  realty  became  subject  to  it.  A  general 
execution  had  been  issued.  The  court,  in  deciding  upon  the 
claim  that  the  property  was  exempt,  said :  "  The  indebtedness 
was  contracted  prior  to  the  acquisition  of  the  homestead,  and 
for  such  indebtedness  it  could  be  sold,  unless  it  was  acquired 
with  the  proceeds  of  a  prior  homestead,  and  this  is  not 
claimed."® 

•  Id.,  citing  Pender  y.  Lancaster,  14  *  Hale  v.  Heaslip,  16  la.  451 ;  Page 

S.  C.  25.  V.  Ewbank,  18  la.   580 ;   Delavan  v. 

2McClaiu's     Iowa    Code,    §    3167  Pratt,  19  la.  429 ;  Hyatt  v.  Spearman, 

(1992);  la.  Code  (1873),  §  1992;  Rev.  20  la.  510;  Elston  v.  Robmson,  23  la. 

Stat.  (1860),  §  2281.  208;    Peterson  v.    Little,  74  la.  223. 

3  Arnold  v.  Gotshall,   71   la.   572;  5  Laing  v.  Cunningham,  17  la.  510; 

First  N.  Bank  V.  Hollingsworth,  78  la.  Brainard  v.  Van  Kuran,  22  la.  2G1. 

575 ;    Johnson  v.  Moser,  66  la.  530 ;  «  Lamb  v.  McConkey,  76  la.  47. 
Givans  v.  Dewey,  47  la.  414 


DEBTS    PRIOR   TO    PURCHASE    AND    OCCUPANCY. 


283 


This  rule,  that  after  the  purchase  but  before  occupancy 
the  land  is  liable,  is  not  followed  where  the  statute  exempts 
from  the  date  of  purchase.' 

The  novation  of  a  prescribed  debt,  made  before  actual  oc- 
cupancy, renders  the  property  liable  after  that  event.'  If  the 
owner,  by  wrong-doing,  before  occupancy  of  the  homestead, 
has  pecuniarily  benefited  himself;  and  if  the  circumstances 
are  such  that  the  person  wronged  can  maintain  action  on  an 


I  Hensey  v.  Hensey  (Ky.),  17  S.  W. 
333.  Bentley,  J. :  "  The  appellants 
allege  in  their  answer  that  the  mort- 
gage was  not  recorded  or  lodged  for 
record,  and  that  they,  at  the  time  the 
action  to  foreclose  the  mortgage  was 
brought,  were  living  on  the  land, 
with  their  family,  as  a  homestead, 
and  the  land  was  not  worth  as  much 
as  $1,000.  The  court,  not  deeming 
the  answer  sufficient,  gave  judgment 
for  the  sale  of  the  land  to  satisfy  the 
mortgage  lien.  This  was  error.  It  is 
well  settled  by  this  court  that  the 
debtor  with  a  family  may  in  good 
faith  move  on  the  land,  and  make  a 
home  of  it,  and  thereby  acquire  a 
homestead  in  it,  notwithstanding  his 
indebtedness  was  created  prior  to  his 
moving  on  the  laud,  provided  the  in- 
debtedness was  not  created  before 
the  purchase  of  the  land  or  the  erec- 
tion of  the  improvements.  So  the 
only  question  is,  does  the  mortgage 
defeat  the  appellants'  right  in  that 
regard?  Section  13,  article  13,  chap- 
ter 38,  General  Statutes,  provides: 
'  No  mortgage,  release,  or  waiver  of 
such  exemption  shall  be  valid  unless 
the  same  be  in  writing,  subscribed  by 
the  defendant  and  his  wife,  and  ac- 
knowledged and  recorded  in  the 
same  manner  as  conveyances  of  real 
estate.'  Of  course,  this  language 
means  conveyances  of  real  estate  by 
the  husband  and  wife;  and  it  de- 
clares that  tlie  mortgage,  release,  etc., 
to  be  valid  as  a  conveyance  or  release 
of  the  homestead  right,  must  be  suffi- 


cient to  convey  the  wife's  potential  or 
other  interest  in  the  real  estate ;  and,  if 
the  mortgage  is  not  sufficient  to  con- 
vey her  interest,  it  is  also  insufficient 
to  convey  the  homestead  interest  of 
the  husband.  In  the  latter  respect 
mortgage,  etc.,  is  unlike  the  convey- 
ance of  real  estate  in  general,  because 
the  conveyance  of  the  general  estate 
may  be  sufficient  to  convey  the  hus- 
band's title,  but  not  that  of  the  wife ; 
whereas,  as  said,  the  mortgage  of  the 
homestead  must  be  sufficient  to  con- 
vey the  wife's  interest  therein  ;  other- 
wise it  is  invalid,  for  such  purpose, 
as  to  both  husband  and  wife.  So  the 
question  is,  is  the  mortgage  sufficient 
as  to  the  wife  to  convey  the  home- 
stead? Upon  that  subject,  section  21, 
chapter  24,  General  Statutes,  provides 
that  a  deed  of  a  married  woman,  to 
be  effectual,  must  be  acknowledged 
before  the  proper  officer,  and  lodged 
for  record  in  the  proper  office.  As 
has  been  construed  by  this  court,  it 
is  as  essential,  to  make  the  deed  ef- 
fectual against  a  married  woman,  to 
have  the  same  recorded  or  lodged  for 
record  in  the  proper  office  as  it  is 
that  she  should  acknowledge  the 
same  before  the  proper  othcer.  This 
requisite  not  having  been  complied 
with,  the  mortgage  was  ineffectual 
to  convey  either  of  the  appellants' 
homestead  right.  The  judgment  is 
reversed,  and  remanded  with  direc- 
tions for  further  proceedings  consist- 
ent with  this  opinion." 
2  Sloan  V.  Waugh,  18  la.  224. 


284  LIABILITIES. 

implied  promise,  there  is  debt  antedating  the  establishment  of 
the  homestead,  and  it  may  be  collected  from  the  property.^ 

Though  a  homestead  may  have  been  validly  conveyed  and 
re-acquired  by  its  owner,  while  ordinary  debts  against  him 
existed,  it  will  be  liable  for  all  indebtedness  contracted  before 
the  re-acquisition.2 

Ordinary  debt  contracted  before  the  homestead  was  estab- 
lished may  be  prosecuted  to  judgment  afterwards  so  as  to 
create  a  lien  upon  the  property,  which  is  held  to  outrank  the 
mortgage  of  the  homestead  made  subsequent  to  the  contract- 
ing of  such  debt.  This  rule  is  confined  to  the  parties  and 
others  chargeable  with  notice  of  the  character  of  the  debt.'' 

Under  the  rule  that  a  debt  existing  when  the  homestead 
was  acquired  is  collectible  against  the  homestead,  judgment 
upon  it  is  held  to  create  a  lien  retroactive  in  effect  from  the 
date  of  the  debt:  so  that  a  senior  judgment  on  a  junior  debt, 
not  thus  pre-existing,  is  postponed  to  it.^  But,  prior  to  judg- 
ment, such  antecedent  debt  is  without  lien,  so  that  an  unnoti- 
fied ])urchaser  of  the  homestead  is  not  affected,^  lie  takes, 
subject  to  the  lien,  if  his  purchase  is  after  it  is  attached.^ 

The  retroaction  above  mentioned  must  have  statutory  sup- 
port to  sustain  it,  since  it  does  not  stand  upon  any  settled 
principle. 

The  wife  need  not  sign  a  mortgage  on  the  homestead  given 
to  secure  a  debt  created  prior  to  the  establishment  by  actual 
occupation,  where  such  debts  are  collectible  from  the  prop- 
ertv.  Such  a  mortgage  is  held  valid  as  to  her,  because  it 
creates  no  additional  burden  relative  to  her  rights  and  inter- 
ests, while  it  would  be  invalid  as  to  persons  innocently  pur- 
chasing the  ])roperty  before  judgment  on  the  secured  debt,  to 
whom  even  the  recordation  of  the  mortgage  would  not  be 
legal  notice.'  For  they  w^ould  have  bought  Avhile  there  was 
no  lien  upon  the  property,  and  while  the  debt  was  merely  a 
personal  one. 

1  Warner  v.  Cammack,  37  la.  C43.  *  Phelps  v.  Finn,  45  la.  447. 

2  Butler  V.  Nelson,  73  la.  733.  »  Higley  v.  Millard,  45  la.  586. 

3  Hale  V.  Heaslip,  16  la.  451 ;  Hyatt        6  Kimball  v.  Wilson,  59  la.  638. 

V.  Spearman,  80  la.  510 ;  Elston  v.        "  Higley  v.  Millard,  45  la.  586.     See 
Robinson,  33  la.  308.     See  Linscott  v.     ch.  XH,  §  4. 
Lamart,  46  la.  313. 


DEBTS    PRIOR   TO    PURCHASE    AND    OCCUPANCY,  285 

A  homestead  may  be  exchanged  for  one  of  equal  or  less 
value  without  subjecting  the  new  one  to  liability  for  debts  con- 
tracted by  the  owner  after  the  acquisition  of  the  old  one  but 
before  that  of  the  new.^  Courts  are  liberal  to  the  debtor 
making  the  exchange.  The  time  necessary  to  effect  it  is  con- 
sidered, and  a  reasonable  interval  between  the  sale  of  the  first 
and  the  purchase  of  the  second  is  respected,  when  the  exchange 
is  effected  in  this  way  and  not  by  direct  swapping  with  the 
owner  of  the  new  home.  Meanwhile,  the  proceeds  of  the  old 
are  held  exempt.'^ 

If  the  new  is  of  greater  value  than  the  old  exempt  property 
was,  so  that  it  was  paid  for  by  the  addition  of  a  sum  greater 
than  the  proceeds  of  the  latter;  if  the  circumstances  are  such 
that  the  acquisition  of  the  new  homestead  cannot  reasonably 
be  considered  in  lieu  of  the  old  one,  the  property  would  be 
liable  for  debts  prior  to  its  purchase.^ 

A  debtor  bought  a  homestead  and  paid  for  it,  but  had  it 
deeded  to  his  wife  to  defeat  his  creditors.  Occupied  by  him 
and  her,  the  home  was  attached.  There  was  an  attachment 
for  a  claim  subsequent  to  the  acquisition  of  the  homestead, 
and  a  second  attachment  for  one  prior  to  that  acquisition. 
There  was  judgment,  and  the  land  was  sold  under  the  first 
attachment.  The  purchaser  came  into  possession,  having  paid 
the  debtor  and  his  wife  to  relinquish  any  claim.  The  title  of 
the  purchaser  was  construed  to  be  no  better  than  that  of  the 
debtor  had  been,  and  therefore  subject  to  the  lien  of  the  sec- 
ond attachment  bond  on  a  debt  antedating  the  acquisition  of 
the  homestead.^ 

A  father  secured  the  exemption  of  fifty  acres  of  land,  as  the 
head  of  a  family  having  no  members  except  a  minor  son.  The 
exemption  expired  with  the  son's  minority.  The  son  then 
bought  the  land  for  valuable  consideration,  and  held  posses- 
sion for  four  years,  without  notice  of  an  outstanding  judg- 
ment against  his  father.     The  court  held  that  the  lien  of  the 

1  State  V.  Geddis,  44  la.  539 ;  Ben-  2  Cases  last  cited. 

ham  V.  Chamberlain,  39  la.  358 ;  Fur-  » Farra  v.  Quigly,  57  Mo.  284. 

man  v.  Dewell,  35  la.  170 ;  Robb  v.  *  Peake  v.  Cameron,  103  Mo.  568 ; 

McBride,  28  la.  386 ;  Sargent  v.  Chub-  15  S.  W.  70 ;    Rev.  Stat  Mo.  (1879). 

bock,  19  la.  37 ;  Pearson  v.  Minturn,  g§  2C89,  2695. 
18  la.  36 ;  Lamb  v.  McConkey,  76  la, 
47. 


286  LIABILITIES, 

judgment  had  ceased  to  be  operative,  because  the  son  had 
held  for  four  years  before  tlie  levy  was  made  to  enforce  the 
judgment  against  the  father.^ 

Where  exemption  is  inapplicable  to  "  sales  under  execution, 
attachment  or  judgment  at  the  suit  of  creditors,  if  the  debt 
or  liability  existed  prior  to  the  purchase  of  the  land  or  the 
erection  of  improvements  thereon,"  "^  it  is  held  that  the  repair 
of  the  home  building  is  not  meant  by  "  erection  of  improve- 
ments." So,  a  householder,  occupying  a  homestead  within 
the  monetary  limit,  who  made  repairs  after  having  contracted 
a  debt,  did  not  render  the  homestead  liable  therefor  —  the 
debt  not  being  for  the  repairs.' 

Inheriting  land  is  the  same  as  the  purchase  of  it,  so  far  as 
the  statutory  provisions  relative  to  anterior  debts  are  con- 
cerned,* But  a  different  view  was  formerly  taken.  A  house- 
keeper resided,  with  his  family,  on  a  part  of  his  father's  land, 
and  continued  to  occupy  the  same  home  after  his  father's 
death,  and  after  his  acquisition  of  title  by  descent.  Judgment 
was  rendered  against  him  on  a  debt  contracted  prior  to  his 
acquisition  of  the  title.  He  was  held  entitled  to  hold  his 
homestead  against  this  judgment,  on  the  ground  that  he  had 
not  disappointed  the  expectation  of  the  creditor  by  expending 
money  or  property  for  this  land  which  would  otherwise  have 
gone  to  satisfy  the  creditor.^ 

When  a  surety  has  a  right  of  action  by  way  of  recourse 
against  his  defaulting  principal,  and  the  right  relates  back  to 
the  time  of  his  contract  of  suretyship,  upon  his  payment  for 
his  principal,  it  is  held  superior  to  a  homestead  right  acquired 
by  another  after  he  had  signed  his  obligation ;  that  a  cause  of 
action  arising  prior  to  the  homestead  exemption  takes  preced- 
ence of  the  exemption  claim. 

In  a  case  involving  this  matter  as  one  of  rank,  it  was  said 
that  when  the  surety  took  his  obligation  there  was  no  home- 

iBlalock  V.  Denham,  85  Ga,  646;  » O'Gorman    v.    Madden    (Ky,),    5 

11  S.  E.  1038 ;  Ga.  Code,  §§  2040,  3583.  S,  W.  756. 

2  Gen.    Stat    of    Kentucky  (1888),  *  Creager  v.  Creager,  87  Ky.  449, 

pp.  574-8  (new  ed.),  ch.   38,  art.   13.  5  Jewell  v.  Clark,  78  Ky.  398.     The 

g   16 ;    Hensey  v.  Hensey  (Ky.),    17  reconciliation  of  this  case  with  that 

S.  W.  333 ;  Travis  v.  Davis  (Ky.),  15  last  above  cited  is  put  on  the  ground 

S.  W.  525.  of  non-occupancy  by  Creager. 


DEBTS    PRIOR   TO    FILING    TUE    DEED.  287 

stead  law.  His  taking  it  "  created  an  existing  cause  of  action, 
contingent "  upon  his  principal's  default.  "An  implied  con- 
tract was  then  raised  by  the  law  between  "  them,  that  the 
principal  should  indemnify  the  surety ;  "  and  this  implied  con- 
tract took  effect  from  the  date  of  the  surety's  signing  the 
bond,  and  not  merely  from  the  time  he  paid  the  money :  the 
payment  in  such  case  relating  to  the  inception  of  the  implied 
liabilit3^  Thus,  where  such  a  liability  was  created  by  reason 
of  the  surety's  signing  as  aforesaid,  and  afterwards  a  home- 
stead act  was  passed ;  and  the  surety,  after  the  passage  of  the 
act,  paid  the  debt,  it  was  ruled  that  the  demand  of  the  surety 
was  superior  to  the  claim  of  homestead  exemption.^  And 
when  he  signed  the  bond,  "  the  implied  contract  of  indemnity 
took  immediate  effect  and  became  a  vested  ri<Tht,  arisinij  on  a 
contract  which  subsequent  legislation  could  not  div^est,  even 
if  so  intended,  for  this  would  amount  to  impairing  the  obli- 
gation of  a  contract  —  a  contract  implied  by  law."^ 

Declaration  of  homestead  cannot  dislodge  a  lien  already 
fixed  upon  the  realty  declared  upon,  however  the  lien  may 
have  been  created.^ 

§  3.  Debts  Prior  to  Filing  the  Deed. 

The  "  homestead  shall  be  subject  to  attachment  and  execu- 
tion upon  all  causes  of  action  existing  at  the  time  of  the  ac- 
quiring such  homestead,  except  as  herein  otherwise  provided; 
and  for  this  purpose  such  time  shall  be  the  date  of  the  filing, 
in  the  proper  office  for  the  records  of  deeds,  the  deed  of  such 
homestead,  when  the  party  holds  title  under  a  deed ;  but  when 
he  holds  title  by  descent  or  devise,  from  the  time  he  becomes 
invested  with  the  title  thereto ;  and  in  case  of  existing  estates, 
such  homestead  shall  not  be  subject  to  attachment  or  levy  of 
execution  upon  any  liability  hereafter  created."* 

iRice  V.  Southgate,  16  Gray,  142;  when  he  was  an  obligor  on  a  forfeited 

Appleton  V.  Bascom,  3  Met.  (Mass.)  forthcoming  bond,  did  not  free  his 

169.  property  from  the  Hen  of  the  bond, 

2  Berry    v.    Ewing,    91    Mo.    395 ;  since  it  had  the  force  of  a  judgment 

Harvey   v.  Wickham,   23    Mo.    112 ;  after  its  return  to  the  clerk's  office, 

Gunn  V.  Barry,  15  Wall.  610.  a\  hich  occurred  before  the  declara- 

*  The  recording  of  a  declaration  of  tiou  had  been  made.     Cabell  v.  Giv- 

homestead,  under  the  statute  of  West  ens,  30  W.  Va.  760. 

Virginia,   Acts  of   1864,  chapter  29,  <  Rev.    Stat    of    Missouri    (1889), 


288  LIABILITIES. 

By  this  statute,  homesteads  are  liable  for  all  debts  created 
before  the  filing  of  the  title  deeds  evidencing  their  ownership, 
in  the  state  where  it  was  enacted.* 

The  filing  of  a  deed,  after  judgment  and  issuance  of  execu- 
tion, w^ill  be  of  no  avail.^ 

Under  the  provision  relative  to  existing  estates,  exempting 
them  from  liability  for  debt  accruing  after  the  passage  of  the 
law,  the  rule  is  practically  the  same  as  in  cases  of  subsequent 
purchase ;  for,  in  either  circumstance,  liability  for  debt  exist- 
ing prior  to  homestead  acquisition  remains  as  though  no  ex- 
emption law  had  been  passed.  The  design  of  the  legislator 
was  to  secure  to  heads  of  families  and  housekeepers,  who  held 
land  when  the  law  was  passed,  homesteads  therein  from  the 
date  of  the  passage  free  from  subsequent  debts ;  and  to  secure, 
to  those  afterwards  acquiring  lands,  homesteads  therein  free 
from  debts  created  after  the  filing  of  their  deeds.  In  both 
cases,  exemption  begins  w4th  the  acquisition  of  the  home- 
stead evidenced  by  the  record.^ 

A  non-resident,  acquiring  land  for  a  homestead  and  filing 
his  deed,  has  it  protected  from  his  subsequent  debts  if  he  oc- 
cupy it  as  his  home  before  those  debts  have  ripened  to  judg- 
ment liens.  His  exemption  is  not  affected  by  the  fact  of  his 
non-residence  at  the  time  of  the  acquisition  of  the  land  of  his 
homestead.* 

If  a  homestead  is  liable  for  debts  antecedent  to  its  acquisi- 
tion, it  does  not  matter  whether  they  were  contracted  in  the 
state  where  the  homestead  lies  or  in  some  other.  The  locus 
in  quo  of  the  debt  or  cause  of  action  has  no  effect  on  the  ques- 
tion of  the  liability  of  the  property.  No  preference  is  to  be 
given  to  home  creditors  over  foreign.'^ 

The  obligation  of  a  principal  to  a  surety  who  has  had  to 
pay  for  him.  is  a  cause  of  action  dating  back  to  the  time  the 
suretyship  was  assumed,  by  the  law  of  relation  —  not  fixed  by 

§  5441 ;  R.  S.  (1879),  §  2695 ;  Laws  of  2  Bunn  v.   Lindsay,   95    Mo.   250 ; 

1887,  p.  197.  Lincoln  v.  Rowe,  64  Mo.  138 ;  Sbind- 

1  O'Shea  v.  Payne,  81  Mo.  516 ;  Kel-  ler  v.  Givens,  63  Mo.  394. 

say  V.  Frazier,  78  Mo.  Ill ;  Rogers  v.  3  State  v.  Diveling,  66  Mo.  375. 

Marsh,  73  Mo.  64 ;  Stivers  v.  Home,  *  Finnegan  v.  Prindeville,  83  Mo. 

63  Mo.  473;  Griswold  v.  Johnson,  23  517, 

Mo.  App.  466 ;  Daudt  v.  Harmon,  16  5  O'Shea  v.  Payne,  81  Mo.  516. 
Mo.  App.  20a 


DEBTS    PRIOR    TO    FILING    THE    DEED.  289 

the  date  when  the  fact  became  apparent  that  the  surety  would 
have  to  pa}^  The  principal  cannot  hokl  his  homestead  ex- 
empt against  sach  debt  if  it  was  acquired  after  the  execution 
of  the  bond  signed  by  the  surety.  This  was  hekl  rekitive  to 
a  curator's  bond.'  If  the  homestead  had  been  acquired  at 
any  time  after  the  curator's  default,  when  the  surety's  con- 
tingent obhgation  first  became  certain,  it  would  seem  that  his 
homestead  ought  not  to  be  exempt  as  against  the  debt  thus 
due  by  him  to  his  surety ;  but  the  case  cited  does  not  go  so 
far. 

If  an  exempt  homestead  be  sold  under  execution,  though 
the  sale  be  null,  it  may  becloud  the  title;  so,  in  such  case,  the 
cloud  may  be  relieved  by  means  of  a  bill  in  equity.^ 

The  burden  of  proof  is  on  the  purchaser  at  an  administra- 
tor's sale  of  a  homestead  to  show  that  creditors'  claims  ante- 
date homestead  acquisition,  it  was  held.^  That  is,  if  he  seek  to 
establish  his  title,  he  must  not  only  show  his  deed,  but  also 
show  that  the  administrator  had  the  right  to  sell  the  propertv 
to  satisfy  valid  claims. 

From  the  proceeds  of  land  bought  by  a  husband  in  his  wife's 
name,  and  subsequently  sold  by  his  creditors  for  his  debts 
after  having  had  the  conveyance  to  the  wife  set  aside  for 
fraud,  a  sum  was  allowed  him  to  purchase  a  homestead ;  but 
this  cannot  be  done  if  the  debts  sued  upon  accrued  before  the 
statutory  exemption.^  The  fraud  of  the  husband  did  not  miti- 
gate against  the  allowance,  since  it  is  said  that  no  fraud  upon 
creditors  can  be  perpetrated  by  any  disposition  a  debtor  can 
make  of  his  homestead.' 

Property  deeded  to  a  wife,  partly  in  consideration  for  a 
homestead  in  -a  state  (other  than  the  one  where  the  deed  was 
given),  where  husband  and  wife  must  join  in  a  homestead 
conveyance,  was  held  not  in  fraud  of  creditors  abd  therefore 
not  susceptible  of  being  subjected  to  the  husband's  debts."  It 
was  contended,  in  the  argument  on  the  case  cited,  that  as 

'Berry  v.  Ewing,  91  Mo.  395.  ling.   66   Mo.   375;  Vogler   v.    Mout- 

2 Harrington  v.  Utterback,  57  Mo.  gomery,  54  Mo.  577    Abernathy  v. 

519.  Whitehead,  69  Mo.   30;   Hartzler  v. 

3  Kelsay  v.  Frazier,  78  Mo.  111.  Tootle,  85  Mo.  23. 

4  Buck  V.  Ashbrook,  59  Mo.  200.  BStinde  v.    Behrens,   81    Mo.    254, 

5  Davis  V.  Land,  88  Mo.  436;  Burns  overnding  Stiude  v.  Bebrens,  6  Mo. 
V.  Bangert,  92  Mo.  167 ;  State  v.  Dive-  App.  309. 

19 


290  LIABILITIES. 

homestead  laws  have  no  extraterritorial  force,  the  proceeds 
of  property  exempt  in  one  state  are  not  necessarily  so  when 
brought  into  another-/  and  that  when  exeraptionists  sell  their 
homestead  with  intent  to  take  the  price  to  another  state,  they 
lose  the  right  of  exemption.^ 

But  the  court  held  that  the  homestead  had  not  been  aban- 
doned ;  that  the  husband  and  wife,  having  the  right  to  sell  it, 
could  legally  agree  that  part  of  the  consideration  should'  be 
property  situated  beyond  the  bounds  of  the  state  to  be  con- 
veyed to  the  wife ;  that  she  could  hold  it  as  a  homestead  free 
from  liability,  and  that  no  liable  property  had  been  put  out 
of  the  reach  of  creditors,' 

The  exception  "  otherwise  provided,"  in  the  section  above 
quoted,  is  found  in  the  following:  "Whenever  such  house- 
keeper or  head  of  a  family  shall  acquire  another  homestead 
,  .  .  the  prior  homestead  shall  thereupon  be  liable  for  his 
debts,  but  such  other  homestead  shall  not  be  liable  for  causes 
of  action  against  him  to  which  such  prior  homestead  would 
not  have  been  liable:  Provided  that  such  other  shall  have 
been  acquired  with  the  consideration  derived  from  the  sale  or 
other  disposition  of  such  prior  homestead,  or  with  other  means 
not  derived  from  the  property  of  such  housekeeper  or  head  of 
a  family."  ^  That  is  to  say,  the  new  homestead,  to  take  the 
place  of  the  old,  must  have  been  acquired  by  means  other 
than  those  derived  from  non-exempt  property,  so  that  cred- 
itors shall  not  have  their  remedy  impaired. 

The  title  of  a  new  homestead  which  takes  the  place  of  the 
old  does  not  have  the  date  of  its  exemption  fixed  by  the  filing 
of  the  deed.  If  no  deed  has  been  filed,  it  is  exempt  from  oc- 
cupancy as  the  successor  of  the  former  homestead,  and  all 
debts  accrued  after  the  filing  of  the  first  deed  are  precluded 
from  enforcement  against  the  new  home  from  that  date.*  The 
second,  however,  must  have  been  acquired  with  the  proceeds 
from  the  sale  of  the  first,  or  by  other  means  not  liable  to  cred- 

»  Cifmgr  Boykin  V.  Edwards,  21  Ala  8  Tex.  312;  Jordan  v.  Godman,  19 
261.  Tex.  275. 

2  Citing  State  v.  Davis,  46  Mo.  108 ;        3  Stinde  v.  Behrens,  supra. 
Orr  V.  Box,  22  Minn.  485 ;  Tenney  v.        *  Rev.  Stat.  Mo.  (1889),  §  5442 ;  (1879), 
Sly,  44  Ind,  269 ;  Traweck  v.  Harris,    §  2696. 

6  Smith  V,  Enos,  91  Mo.  579. 


DEBTS    PRIOR    TO    FILIN(;    THK    DEEP.  291 

iters,'  in  order  to  stand  in  the  former's  position.  It  would  be 
manifestly  unjust  to  allow  the  exemptionist  to  sell  at  will, 
pocket  the  money,  carve  a  new  homestead  from  liable  lands, 
sell  again,  dedicate  again,  and  so  on  ad  infinitiLm. 

A  substituted  homestead  must  be  bought  with  the  proceeds 
of  that  in  lieu  of  which  it  stands,  or  with  means  not  liable  to 
creditors,  in  order  to  render  it  exempt  against  debts  accrued 
after  the  filing  of  the  deed  of  the  former  homestead.  If  the 
new  homestead  be  not  purchased  with  such  proceeds  or  means, 
it  will  be  liable  for  debts  due  up  to  the  time  when  its  deed 
was  filed  — just  as  in  case  of  the  first  homestead.^ 

The  owner  of  two  tracts  of  land  held  one  as  his  homestead 
while  the  other  was  unimproved.  After  having  contracted  a 
debt,  he  sold  the  home  tract  and  invested  a  part  of  the  pro- 
ceeds to  build  a  house  on  the  other  to  be  occupied  as  a  home- 
stead in  lieu  of  the  one  sold.  But  the  latter  was  not  exempt 
from  the  debt  as  the  former  had  been.  With  respect  to  it, 
the  debt  antedated  homestead  dedication,  though  not  the  ac- 
quisition of  the  land  or  the  filing  of  the  deed.  Whether  the 
owner  had  the  design  of  ultimately  making  the  unimproved 
tract  his  homestead,  at  the  time  he  purchased  it,  was  imma- 
terial.' It  is  true  that  subsequent  occupancy  has  been  held, 
under  the  statute  above  cited,  to  relate  back  to  the  filing  of 
the  deed,  so  as  to  bar  intervening  debts ;  ^  but  no  such  retro- 
action is  permissible  when  another  homestead  has  been  en- 
joyed between  the  dates  of  filing  and  occupancy. 

Under  a  statute  similar  to  the  one  above  considered,  provid- 
ing that  the  homestead  should  not  be  exempt  as  to  debts  ex- 
isting when  the  deed  of  the  property  was  left  for  record,  it 
was  decided  that  immediate  occupancy  after  recording  was 
not  essential  to  exemption  against  debts  contracted  between 
the  dates  of  record  and  occupancy.'^ 

The  proceeds  of  a  homestead  are  not  exempt  if  the  seller 
means  to  take  them  to  another  state.* 

1  Beckman  v.  Meyer,  75  Mo.  333 ;  » West  River  Bank  v.  Gale,  42  Vt 
Creath  v.  Dale,  84  Mo.  349.  27 ;  Lamb  v.  Mason,  45  Vt  500 ;  Gen. 

2  Farry  v.  Quigley,  57  Mo.  284  Stat  Vt  (1863),  ch.  68,  §  7 ;  (1850),  ch. 
'  Stanley  v.  Baker,  75  Mo.  60.  65,  t^  6. 

*  Finnegan  v.  Prindeville,  83  Mo.        « State  v.  Laies,  46  Mo.  lOa 
517. 


20'i  LIABILITIES. 

§4.  Debts  Prior  to  Desii^iiation  of  Homestead. 

It  is  prescribed,  in  one  section  of  a  statute:  "  A  lot  of  land, 
with  one  or  more  buildings  tliereon,  not  exceeding  in  value 
one  thousand  dollars,  owned  and  occupied  as  a  residence  by  a 
householder  having  a  family,  and  heretofore  designated  as  a 
homestead,  as  prescribed  by  law,  or  hereafter  designated  for 
that  purpose,  as  prescribed  in  the  next  section,  is  exempt  from 
sale  by  virtue  of  any  execution  issued  upon  a  judgment  recov- 
ered for  a  debt  contracted  after  the  30th  day  of  April,  1850; 
unless  the  judgment  was  recovered,  wholly  for  a  debt  or  dehts 
contracted  before  the  designation  of  the  property,  or  for  the  pur- 
chase-money thereof."  And  the  next  section  prescribes  that 
designation  shall  be  by  recording  the  deed  of  the  homestead, 
or  of  a  notice  describing  the  property,  stating  that  it  is  de- 
signed to  be  held  exempt,  subscribed,  acknowledged  and  cer- 
tified and  recorded  like  a  deed  in  the  Homestead  Exemption 
Book.i 

In  construing,  the  court  said :  "  The  first  section  exempts 
the  homestead  from  sale  under  execution  for  dehts  thereafter 
contracted,  to  the  value  of  one  thousand  dollars.  .  .  ,  The 
second  .  .  .  declares  that  no  property  shall  be  exempt 
.  .  .  for  a  debt  contracted  .  .  .  prior  to  the  recording 
of  the  deed  or  notice  mentioned  in  the  previous  part  of  the 
same  section."  The  exemption  was  held  not  applicable  to  in- 
debtedness arising  from  torts,  but  only  to  debts  created  by 
contract  and  antedating  the  designation  of  the  homestead.^ 
And  even  the  latter  were  held  not  to  be  discharged,  as  against 
the  property,  but  the  only  effect  of  the  exemption  was  to  post- 
pone the  lien  of  a  judgment  thereon  Avhile  the  homestead 
right  existed.^ 

The  homestead  continues  liable,  after  its  designation  by  the 
filing  of  the  deed  or  notice,  for  a  debt  previously  created, 
under  a  statute  similar  to  that  above  cited.* 

A  statute  provides  "  that  no  person,  after  the  first  day  of 
March  next  (1874),  who  has  not  made,  and  had  recorded,  a 

»  Throop's  New  York  Code  of  Civ.  3  Allen  v.  Cook,  26  Barb.  374. 

Pioc,  §§  1397-8,  Act  of  April  10, 1850.  4  New  Jersey   Rev.   Stat.,  p.  1055, 

-'  Lathrop  v.  Siuger,  39  Barb.  396 ;  §  2 ;  Mut.  Life   Ins.  Co.  v.  Newtou 

Scbouton   V.  Kilmer,  8  How.  (N.  Y.)  (N.  J.),  15  Atl.  542. 
537.    See  Cook  v.  Newman,  8  How. 
(N.  Y.)  52a 


\ 


DEBTS    PKIOK    TO    DESIGNATION    OF    HOMESTEAD.    "  293 

declaration  of  intention  [to  hold  homestead  as  previously  pre- 
scribed], shall  have  the  benefit  of  such  homestead  as  to  debts 
contracted  before  the  recording  of  such  declaration."  ^  Such 
declaration  must  describe  the  property;  must  be  duly  ac- 
knowledged before  the  proper  officer,  and  must  be  recorded 
in  a  book  kept  for  the  purpose  by  the  clerk  of  the  county  in 
which  the  homestead  is  situated.- 

Such  a  declaration  was  duly  recorded  August  26,  1874,  and 
the  homestead  was  held  exempt  as  to  debts  contracted  after 
that  date  but  not  as  to  any  contracted  from  the  first  of  March 
to  that  date.  But,  whether  debts  contracted  after  the  adop- 
tion of  the  constitution  and  before  the  first  day  of  March 
should  be  exempt  (if  the  latter  date,  or  a  prior  one,  had  been 
the  time  of  the  recording)  was  not  decided  —  the  court  say- 
ing that  the  question  was  not  presented.' 

A  debtor  dying,  his  widow,  in  1880,  made  the  declaration 
in  behalf  of  their  children ;  but  as  they  stood  in  his  shoes,  the 
homestead  was  liable  for  his  debts  contracted  after  the  date 
fixed  by  the  statute.* 

Debts  are  deemed  antecedent  to  homestead  acquisition,  and 
therefore  susceptible  of  being  enforced  against  it,  up  to  the 
time  when  the  property  is  dedicated  by  both  declaration  and 
occupancy,  under  some  statutes.^ 

Though  the  debts  antedate  the  purchase  and  dedication  of 
the  homestead,  and  though  judgment  thereon  will  bear  upon 
it,  it  has  been  held  they  may  be  defeated  by  the  dedication 
and  occupancy  of  land  as  a  homestead  prior  to  the  rendition 
of  the  judgment.  The  position  of  the  court  was  that  debts 
antecedent  to  the  purchase  and  dedication  (though  not  to  the 
passage  of   the  law),  to  be  collectible  from  the  homestead, 

1  Acts  of  West  Virginia  (1 872-3).  ch.  *  Reinhardt  v.  Reinhardt,  21  W.  Va. 
193,   §   10;  Acts    of    West  Virginia    76. 

(1881),  ch.  19,  §  32.  Warth's  Code,  SBoreliam  v.  Byrne,  83  Cal.  23. 
ch.  41 :  "  Nothing  herein  contained  26-8,  and  cases  therein  cited ;  Lub- 
shall  affect  or  impair  anj' right  ac-  bock  v.  McMann,  82  Cal.  226;  Ma- 
quired  under  chapter  193  of  the  acts  loney  v.  Hefer,  75  Cal.  424;  Denis  v. 
of  1872-3."  Gayle,  40  La.   Ann.   291 ;  Bossier  v. 

2  Acts  of  1872-3,  §9.  Sheriff.  37  La.  Ann.  263;  Code  and 

3  Speidel  v.  Schlosser,  13  W.  Va.  Stat.  Cal,  §  1237  et  seq.;  Const.  La.. 
686,  701.  art  222. 


29i  LIABILITIES. 

must  be  liens  upon  it.'  But  if  they  are  secured  by  liens, 
homestead  laws  cannot  dislodge  them,  and  there  would  be  no 
need  of  allusion  to  them  in  an  exemption  law.  They  differ 
from  ordinary  personal  debts  in  their  susceptibility  of  being 
collected  from  the  homestead  after  being  prosecuted  to  judg- 
ment. It  has  been  held  that  a  judgment  rendered  and  re- 
corded does  not  operate  as  a  lien  upon  real  estate  afterwards 
purchased  by  a  judgment  debtor,  who  occupies  it  as  a  home- 
stead instantaneously  with  the  act  of  purchase.- 

When  a  lien  has  attached  it  cannot  be  dislodged  by  any 
subsequent  homestead  declaration  and  occupation  of  the  land 
on  which  it  rests.** 

§  5.  Debts  by  Written  Contract. 

Where  "  the  homestead  may  be  sold  for  debts  created  by 
written  contract  executed  by  the  persons  having  power  to 
convey,  and  expressly  stipulating  that  the  homestead  is  liable 
therefor,  but  it  shall  not  in  such  case  be  sold  except  to  supply 
the  deficiency  remaining  after  exhausting  the  other  property 
pledged  for  the  payment  of  the  debt  in  the  same  written  con- 
tract," *  it  is  held  that  the  words  "  created  by  written  con- 
tract "  refer  to  the  mode  of  making  the  obligation  rather  than 
to  the  time  when  the  liability  begins.  The  written  contract, 
as  evidence  of  the  obligation,  may  bear  date  at  the  time  the 
debt  is  contracted  or  at  a  later  time.^ 

1  Hawthorne  v.  Smith,  3  Nev.  164 ;  v.  Whittle,  50  Ga.  627 ;  Gunn  v.  Thorn- 
Culver  V.  Rogers,  28  Cal.  520;  Re  ton,  49  Ga.  380;  Burnside  v.  Terry, 
Henkel,  2  Saw.  305.  51  Ga.  186 ;  Mims  v.  Ross,  42  Ga.  121 ; 

2Neumaier  V.Vincent,  41  Minn.  481.  Ryan  v.  Wessells,  15  la.  145;  Han- 
Compare  Kelly  V.  Dill,  23  Minn.  435,  nahs  v.  Felt,  15  la.  141 ;  Hawthorne 
and  Liebetrau  V.  Goodsell,  26  Minn.  v.  Smith,  3  Nev.  164,  168;  McCau- 
417.  On  this  subject  see  different  ley's  Estate,  50  Cal.  544;  Willis  v. 
views,  in  decisions  on  statutes  similar  Matthews,  46  Tex.  478 ;  Chipman  v. 
to  that  of  Minnesota :  Deville  v,  Wi-  McKinney,  41  Tex.  76 ;  Potshuisky 
doe,  64  Mich.  593 ;  Reske  v.  Reske,  51  v.  Krempkan,  26  Tex.  307 ;  McCor- 
Mich.  541 ;  Edwards  v.  Fry,  9  Kan.  mick  v.  Wilcox,  25  111.  247 ;  Ely  v. 
417 ;  Gilworth  v.  Cody,  21  Kan.  702 :  Eastwood,  26  111.  108 ;  Smith  v.  Marc, 
Scofield  V.  Hopkins,  61  Wis.  370.  26  111.  150 ;  Kurz   v.   Brusch,  13   la. 

3  Bunn  V.  Lindsay,  95  Mo.  250,  556';  371;    Lucas  v.   Tickel,   20    la.    490; 

Johnson    v.    Harrison,  41  Wis.  381 ;  Bishop's  Fund  v.  Ryder,  13  Conn.  87. 
Tuttle  V.  Howe,    14  Minn.  145.  152;         *  McC.'s  la.  Code,  §  3168  (1993). 
Brooks  V.  The  State,  54  Ga.  36 ;  Smith        *  Stevens  v.  Myers,  11  la.  18a 


DEBTS    BY    WRITTEN    CONTRACT.  295 

Contracts  are  presumed  to  include  homestead  statutes  as 
well  as  all  others  which  bear  upon  the  agreement,  so  that  the 
rights  of  the  parties  remain  unaffected  by  the  subsequent  re- 
peal of  a  statute  in  force  when  they  contracted.'  The  lex 
contractus  does  not  govern  so  as  to  affect  the  operation  of 
homestead  exemption  upon  the  remedy.^ 

A  lien  is  created  by  agreement  between  parties  contracting 
to  that  effect,  and  .it  has  been  held  that  a  homestead  cannot 
be  subjected  to  one  in  any  other  way.*  But  in  many  states 
homesteads  may  be  subjected  to  liens  in  other  ways.  Judg- 
ments for  torts  or  taxes  create  liens.  Assessments  do.  Under 
some  acts  of  the  United  States,  liens  on  homesteads  may 
arise. 

Even  a  written  confession  of  judgment,  in  which  the  de- 
fendant consents  that  execution  may  issue  against  any  of  his 
property,  "  homestead  included,"  is  held  insufficient  authoriza- 
tion for  the  sale  of  it.*  But  this  is  not  the  law  in  every  state;* 
nor  anywhere,  if  the  confession  be  followed  by  the  rendition 
of  judgment,  provided  no  interest  of  wife  or  children  or  other 
homestead  beneficiary  intervenes. 

It  has  been  suggested  that  an  equitable  lien  may  be  created 
on  a  homestead  by  contract,  when  money  is  advanced  to  re- 
move an  existing  lien,  even  though  the  instrument,  intended 
to  create  a  legal  lien  in  favor  of  those  advancing  the  money, 
should  be  void.® 

The  phrase  "  created  by  written  contract "  applies  to  any 
written  agreement  by  competent  parties  as  well  as  to  deeds 
of  sale  or  mortgage ; '  but  is  not  to  be  extended,  by  construc- 
tion, to  cover  a  verbal  agreement  designed  to  be  reduced  to 
writing  but  never  written.^     Consent  to  have  the  homestead 

1  Bridgman  v.  Wilcut,  4  G.  Gr.  (la.)  by  the  debtor,  will  hold  good  as 
563.  against  homestead  claims  of  his  fam- 

2  Helfenstein  v.  Cave,  3  la,  287.  ily  —  the  date  of  the  debt  being  prior 

3  Meyer  v.  Berlandi,  39  Minn.  438 ;  to  that  of  the  homestead  creation,  but 
Keller  v.  Struck,  31  Minn.  446 ;  Cole-  the  date  of  the  confession  subsequent 
man  v.  Ballandi,  22  Mmn.  144 ;  Cogel  Martin  v.  Kirkpatrick,  30  La,  Ann. 
V.  Mickow,  11  Minn.  354.  1214. 

*  Rutt  V.  Howell,  50  la.  535.  6  Ayres  v.  Probasco,    14  Kas.  175, 

5  In  Louisiana,  exemption  not  ap-  198. 
plying  to  antecedent  debts  by  the  act        '  Foley  v.  Cooper,  43  la  376. 
of  1865,  it  was  held  that  confessions  of        ^  Rutt  v.  Howell,  50  la.  535, 
judgment  on  prescribed  debts,  made 


296  LIABILITIES. 

made  liable,  by  written  contract  with  one  creditor,  will  not 
lay  the  property  open  to  execution  by  an}^  other  creditor;  it 
is  not  a  general  waiv^er  of  exemption.  If  such  contract  in 
favor  of  a  particular  creditor  be  a  mortgage,  a  general  cred- 
itor cannot  be  subrogated  to  the  rights  of  the  favored  mort- 
gagee. The  latter  would  share  pro  rata  with  all  the  other 
creditors  in  case  of  a  general  assignment  by  the  owner  for  the 
benefit  of  creditors,  and  could  only  proceed  against  the  home- 
stead under  his  mortgage  after  the  exhaustion  of  the  other 
propert}' ;  that  is,  after  his  share  from  the  general  assignment 
has  proved  inadequate  to  satisfy  his  claim.^ 

§  6.  Dormant  Liens. 

If  a  statute  limits  homestead  to  the  time  of  occupancy,  a 
judgment  against  the  owner  is  a  dormant  lien  on  the  home- 
stead which  springs  to  life  when  occupancy  ceases  —  whether 
it  cease  by  sale,  abandonment  or  otherwise.'^  This  doubtless 
needs  qualification.  Personal  judgments  against  homestead- 
holders  do  not  create  liens  against  homesteads,  as  a  general 
rule.  Where  they  create  dormant  ones  —  liens  with  enforce- 
ment suspended  during  occupancy  —  the  owner  certainly  can- 
not dislodge  them  by  sale  or  otherwise. 

Where  exemption  from  liability  to  "  attachment,  levy  or 
sale  upon  execution  or  other  process  issuing  out  of  any  court " 
of  the  state  was  limited  to  the  time  during  which  the  prop- 
erty "shall  be  owned  and  occupied  b}^  the  debtor  as  a  home- 
steady"  it  was  held  that  a  judgment  against  a  debtor  in  a 
court  of  record  in  his  county  created  a  lien  upon  the  home- 
stead, but  that  such  lien  could  not  be  enforced  while  the  debtor 
owned  and  occupied  it.^ 

The  property  may  be  subjected  to  liens  though  they  cannot 
be  enforced  while  the  homestead  right  exists.  They  follow 
the  property,  however,  and  may  be  enforced  when  it  is  in 
third  hands,  after  the  expiration  of  the  exemption  right.    The 

1  Dickson  v.  Chorn,  6  la.  19.  3  McHugh'  v.  Smiley,  17  Neb.  620, 

2  Kellerman  v.  Aultnian,  30  Fed.  634 ;  Eaton  v.  Kyan,  5  Neb.  47 ;  State 
888,  Brewer,  J. ;  Code  Civ.  Proc.  Neb.,  Bank  v.  Carson,  4  Neb.  498;  Hoyt  v. 
§  477 ;  Ses.  L.  Neb.  1875,  p.  45.  In  Howe,  3  Wis.  752 ;  Folsom  v.  Carli,  5 
1879  the  homestead  law  was  changed.  Minn.  264. 

Dorrington  v.   Myers,   11    Neb,   388; 
Bank  v.  Carson,  4  Neb.  501. 


DORMANT    LIENS. 


29f 


creditor's  remedy  is  thus  postponed  but  not  defeated.  And 
when  it  becomes  operative,  it  is  not  too  kite  for  the  creditor 
to  have  a  judgment  recognizing-  a  homestead  in  favor  of  his 
judgment  debtor  set  aside  as  void  because  tlie  conditions  of 
homestead  have  ceased  to  exist.'  Present  inhibition  of  forced 
sale  is  not  exemption  from  ultimate  liability.^ 

The  general  rule  of  law  is  (as  already  remarked),  that 
when  a  lien  upon  land  exists  before  the  establishment  of  the 
homestead  right  u]3on  it,  it  cannot  be  dis|;laced  by  the  subse- 
querft  creation  of  the  right.  The  lien-holder  has  his  jus  ad 
rem,  and  not  a  mere  remedy  whicli  may  be  affected  by  legis- 
lation. But  it  has  been  held  doubtful  whether  such  right  in 
the  thing  cannot  be  displaced  by  the  subsequent  occupancy 
of  the  thing  itself,  as  a  homestead,  by  the  debtor.^ 

A  lien  created  on  a  homestead  while  it  is  occupied,  by  a  levy 
then  duly  laid,  may  hold  good  when  the  occupancy  ceases, 
where  the  statute  exonerates  homesteads  from  sale  under  ex- 
ecution, but  not  from  levy;  and  does  not  protect  property 
from  such  sale  after  it  has  ceased  to  be  a  homestead.  The 
creditor,  having  made  legal  seizure,  may  await  the  death  of  the 
homestead-holder  (and  he  may  even  have  to  w^ait  much  longer, 
if  a  wife  and  minor  children  survive),  and  finally  sell  what 
was  the  homestead,  and  get  tardy  payment  of  his  debt.  Such 
a  levy  was  held  to  have  created  a  lien  which  was  good  against 
a  subsequent  purchase  under  a  mortgage  given  by  the  debtor- 
owner  after  the  levy.* 

Yet  the  fee  of  real  estate  cannot  be  sold  by  order  of  a  pro- 
bate court,  upon  the  petition  of  an  administrator,  for  the 

1  Denis  v.  Gayle,  40  La.  Ann.  286.  And  the  constitution  of  that  state 
(See  Culvitt  v.  Wilhams,  35  La.  Ann.  of  1809  was  tlie  same  in  regard  to 
325,  as  to  "  continuing  jurisdiction."  )  sucli  liens.     Jordan  v.  Peak,  38  Tex. 

2  By  the  constitution  of  Texas  of  429 ;  Petty  \.  Barrett,  37  Tex.  84. 
1845,  a  Hen  on  the  liomestead  could  ^Hanna  v.  Morrow,  43  Ark.  107, 
be  created  but  was  inoperative  unless  citing  Mooi'e  v.  Granger,  30  Ark.  574 ; 
It  could  be  enforced  without  a  forced  Patrick  v.  Baxter,  42  Ark.  175 ;  Turn- 
sale.  Sampson  v.  Williamson,  6  Tex.  linson  v.  Swinney,  22  Ark.  400;  Nor- 
109 ;  Bomack  v.  Sykes,  24  Tex.  218 ;  ris  v.  Kidd,  28  Ark.  485. 

Inge  V.  Cain,  65  Tex.  75.     When  the  ^  Brandon  v.   Moore,  50  Ark.   247 ; 

lien-bearing   property   ceased   to   be  Chambers  v.  Sallie,  29  Ark.  412  ;  Nor- 

used  as  a  homestead,  foreclosure  was  ris  v.  Kidd,  28  Ark.  485 ;  Const  of 

allowed.     Lee  v.  Kingsbury,  13  Tex.  1868,  Act  of  1852. 
68;  Stewart  v.  Mackey,  16  Tex.  56. 


298  LIABILITIES. 

payment  of  the  debts  of  the  intestate,  subject  to  the  home 
stead  right  of  a  minor  child,  under  a  constitutional  provision 
by  which  the  widow  and  minor  children  of  the  decedent  home- 
stead-holder are  entitled  to  the  usufruct  of  the  homestead 
during  her  life  and  their  minority,  and  which  exempts  such 
property  from  the  lien  of  any  judgment  except  for  purchase- 
money,  taxes,  improvements  or  indebtedness  of  liduciaries.^ 

Under  such  provisions,  the  sale  of  a  homestead  by  an  ad- 
ministrator to  pay  the  debts  of  the  decedent,  while  the  chil- 
dren were  minors,  was  declared  to  be  void.  The  administra- 
tor had  sold  under  an  order  of  court,  and  had  subsequently 
bought  the  property  himself  from  the  purchaser  at  the  pro- 
bate sale.  On  reaching  their  majority,  the  children  brought 
an  action  of  ejectment,  to  recover  the  property.  The  home- 
stead right  had  terminated  with  their  minority ;  it  no  longer 
existed  when  their  suit  was  instituted.  But  they  were  held 
entitled  to  the  property  as  heirs :  the  sale  being  a  nullity ;  and 
the  property,  in  their  hands,  was  held  liable  for  their  father's 
debts.2 

And  dormant  liens  may  be  enforced  against  property  that 
was  homestead  but  which  has  ceased  to  be  such.^ 

Where  judgments  rest  as  dormant  liens  upon  homesteads, 
enforceable  as  soon  as  the  family  occupancy  of  the  beneficia- 
ries ceases,  it  is  reasoned  that  no  higher  evidence  that  the 
property  is  no  longer  needed  as  a  home  need  be  found  than 
the  fact  that  the  owner  has  sold  it.  The  conditions,  upon 
which  tho  exemption  is  granted,  cease  upon  sale.  Then  a  judg- 
ment or  mortgage,  previously  suspended,  becomes  operative.'' 

The  lien  of  a  judgment  against  the  owner  of  a  homestead 
is  dormant  as  to  that  property  while  held  by  him ;  but  if  he 
sell  it,  the  lien  awakes  to  life  and  may  be  enforced  against  the 

1  Const.  Ark.  1874,  art.  IX,  §§  6, 10 ;  3  Lamb  v.  Shays,  14  la.  567 ;  Cum- 

Stayton  v.   Halpern,   50    Ark.   329;  mings  v.  Long,  16  la.  41. 

McCloy  V.  Arnett,  47  Ark.  445,  under  *  Herbert  v.   Mayer,   43    La,  Ann. 

Const.   1808,  XIV,  5;  Act  of   1852;  839;  S.  C,  8  So.  590;  Const,  of  La., 

Garabaldi    v.   Jones,   48    Ark.   236;  art.  219;    Civ.   Code  La.,  art.  8397; 

Nichols  V.  Shearon,  49  Ark.  75.  Denis  v.  Gayle,  40  La.  Ann.  291 ;  Hay- 


2  Nichols  V.  Shearon,  49  Ark.  75 
Altheimer  v.  Davis,  37  Ark.  316 
Booth  V.  Goodwin,  29  Ark.  633 
Wehrle  v.  Wehrle,  39  Ohio  St  365. 


den  V.  Slaughter,  43  La.  Ann.  385 ; 
S.  C,  8  So.  919. 


DOKMANT    LIENS.  299 

late  homestead  property  in  the  hands  of  the  vendee.  Should 
the  vendor  of  such  property  repurchase  it,  before  the  enforce- 
ment of  the  lien,  the  exemption  would  not  revive,  nor  the 
lien  be  disi)laced  or  rendered  again  dormant.^ 

There  may  be  a  suspended  judgment  lien  on  a  homestead : 
as  when  the  statute  allows  judgments  to  be  docketed  against 
it  but  prevents  their  enforcement  during  the  time  the  home- 
stead remains  exempt,  yet  allows  execution  afterwards.  Mean- 
while, the  exemptionist  may  sell  the  land  on  which  the  bene- 
fit rests,  subject  to  the  judgment,  but  also  protected  for  the 
time  being  by  the  suspension  of  the  lien.  The  purchaser  ac- 
quires this  protection  with  the  land,  so  far  as  the  homestead 
extends  with  the  land.^ 

"  This  lien  is  created  by  the  act  of  docketing,  and  eo  instanti 
attaches  to  the  debtor's  estate  in  the  land,  and  there  is  noth- 
ing else  to  which  it  can  adhere ;  but  its  enforcement  is  deferred 
by  the  law  until  the  exemption  expires.  There  is  no  unde- 
fined, shadowy  interest,  springing  into  existence  in  the  future, 
to  which  the  lien  then  attaches  itself,  meanwhile  awaiting  its 
advent,  but  it  fastens  at  once  upon  the  estate  of  the  debtor  in 
the  land,  to  be  enforced  at  a  future  uncertain  time. 

"  This  gives  the  cved\tov  a  present  interest  in  the  land  as  a  se- 
curity for  his  debt,  and  leaves  the  debtor  free  to  do  whatever 
an  owner,  not  in  debt  by  docketed  judgment,  could  do  with 
his  own  property,  with  the  single  proviso  that  he  must  not 
carry  his  spoliations,  not  necessary  to  the  full  enjoyment  of  the 
premises,  so  far  as  to  impair  the  security  they  afford  to  his 
debt."* 

A  lien  against  a  homestead,  resulting  from  the  docketing 
of  a  judgment,  may  be  enforced  on  the  death  of  the  debtor 
who  leaves  no  widow  or  children.* 

There  is  no  need  of  a  levy  to  complete  the  lien,  in  such  case.'^ 

1  Herbert  v.  Mayer,  42  La.  Ann.  sgn^itii^  q^  j_^  in  Jones  v.  Brittou, 

839;   Denis  v.   Gayle,   40  La,   Ann.  supra. 

291;  La.  Const,  art  219;  Civ.  Code,  4  Rogers  v.  Kimsey,  101  N.  C.  559. 

3397.  Held,  that  since  the  act  of  1876-7. 

■•*  Jones  V.   Britton,  102  N.   C.  167  ;  chapter  253,  no  lien  is  created  on  the 

Rankin  v.  Sliaw,  94  N.  C.  405  ;  Mark-  homestead  by  docketiuji'  a  judgment 

ham  V.  Hicks,  90  N.  C.  204 ;  Wilson  Utley  v.  Jones,  93  M.  C.  261 ;  Mark- 

V.  Pattou,  87  N.  C.  318 ;  Hinton  v.  ham  v.  Hicks,  90  N.  C.  204. 

Adrian,  86  N.  C.  61.  *Lytle    v.    Lytle,  94    N.    C.   683; 


300  LIABILITIES. 

The  holder  of  this  dormant  lien  is  not  a  reversionist;  he 
cannot  bring  an  action  of  waste.  The  homestead  is  not  a 
determinable  fee,  nor  a  reversionary  estate.  The  occupant 
may  commit  waste  w^ithout  becoming  liable  to  the  action  of 
Avaste.  But  there  is  a  limit :  he  must  not  wantonly  and  un- 
necessarily reduce  the  value  of  his  wdiole  premises  so  as  to 
impair  the  value  of  the  lien  which  is  enforceable  on  the  home- 
stead when  the  exemption  shall  have  ceased.' 

The  committing  of  waste,  such  as  the  cutting  of  the  wood 
off  the  premises,  may  be  enjoined  where  there  is  a  judgment 
operating  as  a  lien  upon  a  homestead  worth  not  more  than 
the  statutory  limit  of  value,  if  the  wood-land  constitutes  a 
valuable  part  of  the  property.  An  injunction  may  be  issued 
restraining  the  homestead  occupant  himself  from  cutting  tim- 
ber beyond  what  is  necessary  for  his  own  use;  or  restraining 
a  third  person,  to  whom  he  has  sold  the  wood,  from  cutting 
and  hauling  it  away.- 

May  a  valid  lien  be  displaced  by  the  death  of  the  debtor?  It 
has  been  held  so ;  held  that  his  lien-bearing  propert}?^  may  be 
relieved  by  that  event,  in  favor  of  his  family,  if  he  was  occu- 
pying it  as  a  homestead  when  he  died.  It  is  said:  "Had  he 
lived,  such  use  of  the  property  could  not  have  displaced  the 
lien  given  by  him ;  upon  his  death,  however,  the  property,  to 
the  extent  of  the  interest  which  he  owned  at  the  time  the 
trust  deed  w^as  executed  —  the  same  having  become  in  fact  his 
homestead  —  was  discharged  of  the  lien,  and  his  family  were 
entitled  to  hold  it  free  from  the  claims  of  all  creditors,  his 
estate  being  insolvent. 

"  It  matters  not  what  the  lien  may  be ;  unless  it  be  such  as 
under  the  constitution  may  be  enforced  by  the  sale  of  the 

Sawyers  v.  Sawyers,  93  N.  C.  321;  The  "  reversionary  interest "  could  be 

Lee  V.   Eure,  93  N.   C.  5 ;  Miller  v.  sold  in  that  state  formerly ;  i.  e.,  the 

Miller,  89  N.  C.  402 ;  Mebane  v.  Lay-  land  subject  to  the  homestead  right, 

ton,  89  N.  C.  396.  The  husband  could  sell  it  without 

'  Formerly  held  a  determinable  fee,  joinder    by  the  wife.     Jenkins    v. 

in  North  Carolina.     Poe  v.  Hardie,  Bobbitt.  77  N.  C.  385.     This  was  be- 

65  N.  C.  447.     Then  called  a  "  deter-  fore  1870. 

minable  exemption."   Bank  v.  Green,        2  Jones  v.  Britton,  102  N.  C.  166; 

78  N.  C.  247.     A  quality  of  exemp-  Webb  v.  Boyle,  63  N.  C.  271 ;  Gordon 

tion  attached  to  existing  estate.    Lit-  v.  Lowther,  75  N.  C.  193 ;  Braswell  v. 

tlejohn  V.    Egerton,   77  N.   C.   379;  Morehead,  Busb.    Eq.   26;   Camp  v. 

Keener  v.   Goodson,  89  N.   C.   273.  Bates,  11  Conn.  51. 


DORMANT    LIENS.  301 

homestead,  upon  the  death  of  the  head  of  the  family,  it  must 
give  way  to  the  homestead  exem])tion. 

"Persons,  in  takin^'  liens,  contract  witli  reference  to  this 
fact,  and  cannot  com])lain  if  the  event  occurs  which  they 
might  have  foi'cseen  would  defeat  the  lien."  ' 

It  will  be  observed  that  the  statement  in  this  quotation  is  — 
not  that  the  occupancy  —  setting-  apart  or  designating  of  the 
homestead  —  disphiced  the  lien,  but  that  the  death  of  the 
debtor  did  so.  The  property  was  indehted',  it  was  liable  to  be 
proceeded  against  in  rem,  whoever  might  hold  the  title;  and 
it  is  therefore  dillicult  to  perceive  how  the  death  of  him  who 
p:it  the  burden  on  could  take  it  off.  As  the  lien-hohler  had 
a  vested  right  in  the  proi)erty,^  it  is  equally  difficult  to  see 
how  any  legislature,  or  convention  making  a  state  constitution, 
could  impair  that  right.  And  it  would  seem  to  follow  that 
"  persons,  in  taking  liens,"  may  contract  with  reference  to 
constitutional  guaranties,  and  conclude  that,  if  the  lien  is  valid 
when  made,  the  property  cannot  escape  its  indebtedness  by  the 
death  of  anybody. 

The  theory  of  the  court  rendering  the  decision  is  that  the 
lien  was  only  conditionally  m  7'em.  when  created;  that  the 
statute  qualified  it,  so  that  the  creditor  knew  when  contract- 
ing that  his  lien  was  defeasible  by  the  death  of  the  debtor.  This 
novel  excej^tion  to  the  general  rule  governing  property  obli- 
gations leaves  the  rule  itself  intact,  unaffected  in  the  states  to 
which  this  statute  and  decision  are  inapplicable. 

That  court  has  frequently  avowed  the  principle  that  an  at- 
tached lien  cannot  be  detached  by  exemption;  that  when  a 
judgment  lien  has  attached  to  real  property,  it  cannot  be  ren- 
dered nugatory  by  any  attempt  of  the  debtor  to  stamp  the 
lien-bearing  property  with  the  homestead  character.' 

Liens  resting  on  the  homestead  are  not  displaced  to  give 
the  widow  and  minor  heirs  an  exempt  home  at  the  expense  of 
the  lien-holders.'* 

A  privileged   debt,  bearing  on  no  particular  property  spe- 

'  Griffie  v.  Maxey,  58  Tex.  314,  cit-  Reed  v.  Howard,  71  Tex.  204 ;  Wright 

ing  Reeves  v.  Petty,  44  Tex.  250.  v.  Straub,  64  Tex.  66 ;  Gage  v.  Neb- 

2  Bank  v.  Morris,  6  Hill,  362.  lett,  57  Tex.  374. 
*  Van  Ratcliflf  v.  Call,  72  Tex.  495 ;        *  Phipps  v.  Acton,  12  Bush,  375. 


302  LIABILITIES. 

cially,  ought  to  be  satisfied  out  of  other  than  the  homestead 
property,  if  practicable,^ 

§  7.  Attachment  Liens. 

(1)  Claiming  homestead  after  attachment:  When  the  law 
gives  the  right  of  attachment  for  debt,  it  gives  also  that  of  sale 
to  complete  the  object:  the  satisfaction  of  the  debt.  "Such 
right  is,  from  the  time  the  lien  attaches  by  seizure,  a  vested 
right  and  property.  In  this  respect,  there  is  no  difference  be- 
tween a  lien  secured  by  a  levy  of  an  attachment  and  one  se- 
cured by  the  docketing  of  a  judgment,  or  the  levy  of  an  exe- 
cution, except  that  it  may  be  defeated  by  the  dissolution  of 
the  attachment,  or  failure  to  obtain  judgment."  This  was 
said  in  deciding  that  an  owner  cannot  defeat  an  attachment 
lien  by  selecting  the  attached  property  as  his  homestead  after 
the  seizure.  And  it  is  added :  "  There  is  no  reason  to  suppose 
from  the  language,  either  of  the  constitution  or  of  the  statute,'^ 
that  it  was  intended  to  give  to  the  debtor  the  power,  by  his 
acts,  to  deprive  others  of  rights  previously  obtained  in  his 
property.  They  could  be  deprived  of  such  rights  only  by  due 
process  of  law."  ^ 

There  is  an  unguarded  remark,  in  the  quotation  from  the 
decision  first  above  cited,  that,  in  respect  to  the  vested  right 
of  the  lien-holder,  "  there  is  no  difference  between  a  lien  se- 
cured by  a  levy  of  an  attachment  and  one  secured  by  the 
docketing  of  a  judgment  or  the  levy  of  an  execution,  except 
that  it  may  be  defeated  by  the  dissolution  of  the  attachment 
or  failure  to  obtain  judgment."  There  is  this  marked  differ- 
ence :  the  attachment  lien  always  bears  on  specific  property 
while  the  ordinary  judgment  creates  a  general  lien.  And  this 
is  an  important  difference  in  it^  bearing  on  subsequent  home- 
stead selection,  as  will  be  pointed  out  particularly  hereafter. 

It  is  true,  as  judicially  said,  that  there  is  no  difference  be- 
tween the  liens  as  to  the  creation  of  vested  rights;  but  the 
point  to  which  attention  is  called  (and  which  perhaps  was  not 
pertinent  to  the  thought  of  the  court),  is  that  there  is  no 
vested  right  lodged  in  the  judgment  creditor   by  a  general 

1  Harrison  v.  Obertheir,  40  Tex.  385.        3  Kelly  v.  Dill,  23  Minn.  435,  439; 

2  Constitution  and  Stat,  of  Minn.         Tuttle  v.  Howe,  14  Minn.  145. 


ATTACHMENT    LIENS.  303 

judgment  which  would  preclude  the  debtor  from  claiming- 
homestead  in  realty  levied  upon  under  the  judgment,  before 
or  at  the  time  of  the  levy,  since  there  would  be  no  specific 
lien  upon  it.  Other  realty  of  his  might  satisfy  the  judgment. 
Whether  the  debtor  would  be  permitted  to  claim  home- 
stead in  realty  specifically  burdened  by  an  attachment  lien, 
when  the  creditor  has  a  vested  right  of  lien  on  the  particular 
property  claimed,  is  a  different  question;  and  a  question  that 
has  been  fully  answered  by  the  decisions  next  cited.  The  an- 
swer is  negative  —  except  that,  as  against  other  than  the  at- 
tacher,  the  homestead  may  be  legally  claimed. 

When  property,  not  exempt  from  execution,  has  been  at- 
tached, no  subsequent  action  of  the  owner,  such  as  claiming 
it  as  a  homestead,  moving  upon  it,  making  it  the  family  home 
and  complying  generally  with  the  legal  requisites  for  estab- 
lishing a  homestead,  will  defeat  the  attachment  lien.  When 
the  preliminary  seizure  has  been  effected  legally,  it  precludes 
homestead  dedication  as  effectually  as  levy  after  judgment 
could  do  so.^ 

So,  an  attachment  not  dissolved  is  like  an  execution  levy 
not  set  aside.  Either  is  a  bar  to  homestead  claim,  but  either 
may  be  removed  or  dissolved  on  proper  pleading  and  proof  so 
as  to  make  way  for  homestead  claim. 

Again  it  is  said,  under  a  different  statute,  that  attachment 
of  land  for  debt  is  not  defeated  by  the  debtor's  becoming  a 
resident  of  the  state  and  claiming  homestead  after  the  levy 
but  before  the  inchoate  lien  has  been  perfected  by  judgment,- 
That  is  to  say,  the  inchoate  lien  is  not  displaced  by  the  mere 
compliance  with  the  requisites  for  obtaining  a  homestead 
without  taking  steps  in  the  attachment  case  to  dislodge  the 
lien.  Such  a  homestead  would  be  subject  to  the  lien  subse- 
quently perfected  by  judgment. 

To  the  same  effect,  it  is  said  under  another  statute  that  at- 
tachment of  real  estate  having  been  laid  so  that  the  lien  has 
taken  hold,  it  is  not  dislodged  by  the  subsequent  conversion 
of  the  realty  to  homestead  purposes.'     When  the  lien  is  ma- 

1  Avery  v.  Stephens,  48  Mich.  246.        SBuIlene  v.  Hiatt,  12  Kas.  98;  Rob- 
-'Watkins  v.  Overby,  83  N.  C,  165;     inson  v.  Wilson,  15  Kas.  595. 

Ladd  V.  Adams,  66  N,  C.  164;  Mc- 

Keithan  v.  Terry,  64  N.  C.  25. 


304  LIABILITIES. 

tured  by  judgment,  it  will  be  held,  l)y  the  law  of  retroaction, 
to  have  existed  as  a  perfect  lien  from  the  date  of  the  levy, 
and  therefore  prior  to  the  dedication  of  the  land  levied  upon, 
as  a  homestead.  The  decisions  may  not  show  the  distinction 
above  indicated,  between  the  contingent  and  the  perfected  at- 
tachment lien,  but  they  hold  that  subsequent  homestead  selec- 
tion will  not  defeat  a  prior  lien.^  And  that  the  lien  of  a  judg- 
ment on  attachment  reaches  back,  by  the  law  of  relation,  to 
the  date  of  the  preliminary  levy.^ 

Should  an  attachment  of  a  house  and  land  be  made,  yet  the 
inchoate,  contingent  lien,  thus  created,  be  never  ripened  by 
judgment,  the  homestead  dedication  of  the  seized  property 
between  the  dates  of  seizure  and  the  judgment  of  dissolution, 
would  be  perfectly  good.  What  had  seemed  a  lien  upon  it 
Avas  no  lien,  since  the  dissolution,  by  the  law  of  relation,  re- 
troacts  as  well  as  the  other  sort  of  judgment  mentioned. 

And,  as  above  remarked,  even  though  the  attachment  be 
sustained  by  judgment,  the  homestead  established  after  the 
attaching  and  before  the  judgment  would  hold  good  as  to 
ordinary  creditors,  though  not  as  to  the  attaching  creditor. 

The  rule  may  be  thus  briefly  stated  :  The  lien  created  by  the 
levy  of  an  attachment  is  not  displaced  by  the  making  a  home- 
stead of  the  land  attached,  before  tlie  lien  has  been  followed 
by  judgment.^ 

After  judgment  sustaining  an  attachment,  it  is  too  late  to 
claim  homestead  in  the  attached  property  as  against  the  per- 

1  Lee  V.  Miller,  It  Allen  (Mass.).  37 ;  McKiuney,  41  Tex.  76 ;  Potshuisky  v. 

Elston  V.  Robinson,  21  la.  531 ;  Tour-  Krempkan,  26  Tex.  807;  Reynolds  v. 

ville  V.  Pierson,  39  111.  447 ;  Kresin  v.  Tenant,   51   Ark.   84 ;    Richardson  v. 

Marr,    15    Minn.    116;    Coolidge    v.  Adler,  46  Ark.  43 ;  Patrick  v.  Baxter, 

Wells,  20  Mich.  79 ;  Hale  v.  Heaslip,  42  Ark.  175 ;  Ryan  v.  Wessels,  15  la. 

16  la.  452 ;  Hyatt  v.  Bullene,  20  Kas.  145 ;  Hannahs  v.  Felt,  15  la.  141 ;  Bul- 

557;  Kelly  v.  Dill,  23  Minn.  43.5.  lene  v.  Hiatt,  12  Kan.  98;  Robinson 

-'Wright  V.  Dunning,  46  111.  276;  v.  Wilson,   15   Kan.   595;   Carter  v. 

Austin  V.  Stanley,  46  N.  H.  51 ;  Tuttle  Champion,  8  Conn.  549 ;  Lyon  v.  San- 

V.    Howe.   14   Minn.    145;    Tuttle   v.  ford,  5  Conn.  544;  Kelly  v.  Dill,  23 

Turner,  28  Tex.  773.  Minn.  435;  Tuttle  v.  Howe,  14  Minn. 

3  Baird  v.  Trice,  51  Tex.  555  (over-  145 ;  Smith  v.  Bradstreet,  16  Pick.  264 ; 

ruling  Stone  v.  Darrell,  20  Tex.  11);  People  v.  Cameron,  7  111.  468;  Peck 

Clements  v.  Lacey,  51  Tex.  150 ;  Rail-  v.  Webber,  7  How.  (Miss.)  658 ;  Goore 

road  Co.  v.  Winter,  44  Tex.  597 ;  Mabry  v.  McDaniel,  1  McCord,  480. 
V.  Harrison,  44  Tex.  286 ;  Chipman  v. 


A-ITACHMENT    LIENS.  805 

fected  attachment  lien.'  For  then  the  debt  sued  upon  has  be- 
come a  property  debt,  like  a  mortgage.  It  is  no  longer  an 
ordinary  one,  as  it  was  before,  but  it  now  is  secured  by  a  lien 
on  specific  property. 

This  effect  of  the  attachment  judgment  does  not  depend 
upon  the  defendant's  course  —  his  appearance  in  the  case  or 
his  absence  and  default.  Whether  the  attachment  proceedings 
were  inte?'  partes  or  ex  parte ^  Avhether  in  jpersonam  or  in  I'ein, 
this  effect  is  the  same ;  for  the  defendant  in  any  case  must 
have  had  notice,  either  by  service  or  publication,  so  as  to  have 
had  opportunity  to  defend,  else  the  whole  proceeding  would 
be  null  and  void.  If  notified,  whether  he  respond  or  not,  the 
proceedings,  if  done  according  to  statute,  and  continued  to 
judgment,  will  result  in  a  valid,  specific  lien  vindicable  upon 
the  property  attached  as  that  of  the  debtor.  All  the  reasons 
applicable  when  the  defendant  appears  and  defends,  yet  fails 
to  plead  homestead,  apply  also  when  he  stays  away  and  allows 
default  or  allows  judgment  in  rem.  The  lien  created  is  the 
same  in  either  case.  It  would  be  a  mere  mockery  to  have  at- 
tachment proceedings  if  their  result  could  be  defeated  and  the 
lien  dislodged  by  subsequent  claim.  The  general  rule  is  that 
the  lien  will  stand. 

This  rule  is  not  without  exception ;  or,  rather,  it  is  not  al- 
ways followed ;  for  in  the  state  affording  several  of  the  above- 
cited  decisions,  it  has  been  narrowed,  if  not  disregarded. 
After  an  attachment  had  been  sustained  by  judgment,  the 
debtor,  in  a  separate  action,  successfully  asserted  homestead 
in  the  land  attached.^  It  was  remarked  by  the  court,  in  ac- 
cording the  homestead,  that  the  debtor  had  not  defended  in 
the  attachment  suit.  Whether  that  fact  made  a  difference  is 
not  apparent ;  for  any  attachment  without  notice  is  a  nullity ; 
while  any  with  notice  may  be  defended;  and  the  failure  of 
the  debtor  to  defend  cannot  affect  its  legality. 

It  is  said  that  property  not  exempt  at  the  date  of  judgment 

1  Perkins  v.   Bragg,   29  Ind.   507 ;  395 ;  Kelly  v.  Dill,  23  Minn.  435 ;  Bar- 
State  v.  Manly,  15  Ind.  8;  Smith  v.  ney  v.  Keniston,  58  N.  H.  168;  Drake's 
Cliadwick,   51   Me.   515 ;    Hadley   v.  Att.,   §  244a;  Waples'  Att  &  Gar., 
Bryai-s,  58  Ala.  139 ;  Hewes  v.  Park-  pp.  164-7 ;  i^ost,  ch.  XXIII,  §  17. 
man,  20  Pick.  90 ;  Nash  v.Farrington,4  '^  Seligson  v.  Collins,  64  Tex.  314. 
Alien,  157 ;  Behymer  v.  Cook,  5  Colo. 
20 


306  LIABILITIES. 

may  become  so  by  being  dedicated  as  a  homestead  before  the 
time  of  sale.^  This  is  so  in  several  states,  as  to  general  judg- 
ments. The  debtor  selects  his  homestead  before  sale.  No 
lien  is  thereby  dislodged ;  no  vested  right  of  the  judgment 
creditor  is  thereby  divested ;  for  the  judgment  creates  none. 
It  is  rendered  subject  to  the  right  of  the  debtor  to  select  his 
exempt  portion.  No  specific  lien  rests  u])on  any  piece  of  the 
defendant's  property.  So,  the  particular  piece  selected  after 
judgment,  not  exempt  at  the  time  of  the  judgment,  becomes 
so  by  selection  before  sale. 

But  an  attachment  judgment  does  affect  particular  prop- 
erty —  does  confirm  a  specific  lien  upon  the  property  attached 
and  makes  it  as  good  as  a  mortgage:  hovs^  now  can  subsequent 
selection  of  it  as  a  homestead  be  tolerated  without  divesting 
the  lienholder  of  a  vested  right? 

Where  recording  is  essential  to  the  creation  of  an  attach- 
ment lien,  there  is  no  reason  why  homestead  may  not  be  de- 
clared between  the  act  of  attaching  and  the  date  of  recording. 
There  would  then  be  no  lien  in  the  way.^  If  the  attachment 
be  recorded  after  the  homestead  declaration,  it  may  be  dis- 
solved on  showing  that  the  attached  property  is  exempt  by 
reason  of  the  timely  homestead  declaration. 

On  the  other  hand,  if  the  recording  of  the  declaration  of 
homestead  is  necessary  to  exemption,  the  property  may  be 
validly  attached  before  the  recording;  and,  even  though  the 
proceeds  of  a  former  homestead  have  been  invested  in  realty 
designed  for  a  new  one,  it  has  been  held  that  the  new  prop- 
erty is  attachable  before  the  recording  of  the  homestead  dec- 
laration.* 

1  Trotter  v.    Dobbs,   38  Miss.  198 ;  of  trust  had  a  homestead  interest, 

Lessley  v.  Phipps,  49  Miss.  790.     In  from  the  date  of  the  recording  of  lii.s 

Davis  V.  Day  (Ark.),  19  S.  W.  502,  it  deed. 

was  held  that  an  execution  sale  did  '■^Wilson  v.  Madison,  58  Cal.  1 ;  Mc- 

not  convey  the  homestead  interest  of  Cracken  v.  Harris,  54  (Jal.  81 ;  Sulli- 

a  claimant  under  a  trust  deed  made  van   v.    Hendrickson,   54    Cal.    258; 

and  recorded  after  the  judgment  but  Hawthorne  v.  Smith,  3  Nev.  185. 

before  the  sale.    The  judgment,  being  3  Rev,    Stat,   of  Idaho,   §§  8071-2, 

founded    upon     a    debt    contracted  3038-9;      Wright     v.      Westheimer 

under  the  constitution  of  1874,  was  (Idaho),   28  P.   430,     The   court,   by 

not  a  lien  upon  the  homestead  of  the  Sullivan,  C.  J.,  said,  after  statmg  the 

defendant      Cohn    v.    Hoffman,   45  facts :  "  The  third  and  fourth  specifi- 

Ark.  376.     The  holder  of  the  deed  cations  of  error  will  be  considered 


ATTACHMENT   LIENS. 


;i<)7 


[2)  Attaching  after  homestead  has  heen  established:  It  is  set- 
tled oeyond  question  that  homesteads  are  as  free  from  attach- 
ment as  from  execution.  If  their  owners  use  the  means  pro- 
vided by  law,  they  can  effectually  defeat  any  effort  to  subject 


together,  and  are  as  follows :  Third. 
'The  court  erred  in  failing  to  find 
that  said  property  was  exempt  from 
execution  and  attachment,  and  was 
not  subject  to  the  debt  sued  on  by 
Westheinier  &  Sons  against  the 
plaintiff."  FonrtI).  "The  court  erred 
in  failing  to  hold  that  the  property 
in  dispvite  in  this  action  was  exempt 
from  seizure,  levy,  and  sale  under 
execution  and  attachment,  because 
of  the  fact  that  plaintiff  procured  the 
money  to  purchase  this  property  from 
the  sale  of  property  on  which  he  had 
a  valid  homestead  exemption  under 
the  laws  of  the  state  of  Idaho.'  The 
contention  is  that,  as  the  property  at- 
tached had  been  purchased  with  the 
proceeds  of  the  sale  of  the  homestead 
of  appellant,  and  that  as  appellant 
purchased  said  property  as  a  home 
for  himself  and  family  and  filed  his 
homestead  declaration  therefor  as 
soon  as  he  had  established  his  resi- 
dence thereon,  the  same  is  exempt 
under  the  homestead  laws.  The 
question  for  consideration,  then,  is, 
under  the  homestead  laws  of  the 
state  of  Idaho,  can  a  person  sell  his 
homestead,  which  is  exempt  from 
execution  and  forced  sale,  and  pur- 
chase another  home  with  the  pro- 
ceeds thereof,  and  hold  the  same, 
exempt  from  execution  and  attach- 
ment, without  filing  in  the  proper 
county  recorder's  office  the  declara- 
tion of  homestead  required  by  sec- 
tion 3071  of  the  Revised  Statutes  of 
Idaho?  The  evidence  contained  in 
the  record  establishes  the  following 
facts:  That  the  appellant,  with  his 
family,  consisting  of  a  wife  and  eight 
small  children,  was  residing  in  the 
town  of  Blackfoot,  Bingham  countv  ; 


that  he  was  the  owner  of  the  home 
in  which  lie  was  then  residing ;  that 
he  had  filed  in  the  proper  recorder's 
office  his  declaration  of  homestead, 
claiming  the  said  property  as  a 
homestead,  and  that  the  same  was 
exempt  from  execution  and  forced 
sale :  that,  being  indebted  to  divers 
persons,  he  concluded  to  sell  said 
homestead,  purchase  another  of  less 
value,  and  pay  certain  of  his  credit- 
ors with  the  surplus.  He  thereupon 
sold  his  homestead,  paid  part  of  his 
debts,  and  invested  $1,000  of  the  pro- 
ceeds of  the  sale  of  said  homestead 
in  the  lots  and  premises  in  ques/tion, 
for  the  purpose  of  making  a  home  for 
himself  and  family.  He  removed  his 
family  thereon  about  December  3  or  4, 
1890,  and  filed  his  homestead  decla- 
ration therefor  on  December  4,  1890. 
That  appellant  filed  his  homestead  de- 
claration after  the  levy  of  the  attach- 
ment, on  November  21,  1890,  and  be- 
fore the  levy  of  the  second  writ  of 
attachment,  December  5,  1890.  The 
second  writ  of  attachment  is  not  a 
lien  upon  said  homestead,  because 
the  homestead  declaration  was  filed 
prior  to  the  levy  of  said  writ.  Rev. 
St.  Idaho,  §  3039.  The  writ  of  at- 
tachment, levied  upon  said  premises 
on  November  21,  1890,  is  a  valid  lien 
thereon,  unless  the  fact  of  its  having 
been  purchased  with  a  part  of  the 
pi-oceeds  arising  from  the  sale  of  the 
former  homestead  of  appellant  ex- 
empts it  from  such  lieu.  Section 
3070,  Rev.  St.  Idaho,  is  as  follows : 
'  In  order  to  select  a  homestead,  the 
hustand  or  the  head  of  the  family, 
or,  in  case  the  husband  has  not  made 
such  selection,  the  wife,  must  ex- 
ecute and  ackuowdedge,  in  the  same 


308 


LIABILITIES. 


such  property  to  the  payment  of  judgments,  on  ordinary  debts 
contracted  after  it  became  exempt,  under  the  operation  of 
either  writ.     In  other  words,  the  general  rule  is  that  home- 


manner  as  conveyance  of  real  estate 
is  acknowledged,  a  declaration  of 
homestead,  and  file  the  same  for  rec- 
ord.' Section  3071  provides  what 
Buch  declaration  must  contain.  Sec- 
tion 3072  provides  that  such  declara- 
tion must  be  recorded  in  the  office  of 
the  recorder  of  the  county  in  which 
the  land  is  situated.  Section  3073 
provides  that,  after  the  filing  of  the 
declaration  for  record,  the  premises 
therein  described  constitute  a  home- 
stead. Section  8038  provides  that 
the  homestead  is  exempt  from  exe- 
cution and  forced  sale,  except  as 
provided  in  title  7  of  the  Eevised 
Statutes.  Section  3039  provides  that 
the  homestead  is  subject  to  execution 
or  forced  sale  in  satisfaction  of  judg- 
ments obtained  for  certain  debts  and 
incumbrances,  and,  among  others,  in 
an  action  in  which  an  attachment 
was  levied  upon  the  premises,  before 
the  filing  of  the  declaration  of  home- 
stead. This  provision  applies  to  the 
case  at  bar,  unless  it  is  excepted  for 
the  reason  of  its  having  been  pur- 
chased with  the  proceeds  of  the 
former  homestead.  The  writ  of  at- 
tachment was  levied  November  21, 
1890,  the  homestead  declaration  was 
filed  December  4,  1890.  Section  3041 
provides  that  a  homestead  can  be 
abandoned  only  by  a  declaration  of 
abandonment,  or  a  grant  or  convey- 
ance thereof,  executed  and  acknowl- 
edged by  the  husband  and  wife,  if 
the  claimant  is  married,  and  by  the 
claimant,  if  unmarried.  From  the 
above  provisions  it  will  be  observed 
that  to  select  a  homestead  in  this 
state,  under  the  homestead  law,  cer- 
tain things  must  be  done  and  per- 
formed before  it  is  a  homestead,  or  is 
exempt  from  execution   and  forced 


sale,  and  that  after  a  homestead  has 
been  once  acquired  it  can  be  aban- 
doned only  as  the  statute  prescribes. 
The  appellant  in  this  case  abandoned 
his  first  homestead  by  selling  and 
conveying  it  to  one  C  S.  Smith. 
There  is  no  provision  in  the  statutes 
of  Idaho  exempting  the  money  for 
which  a  homestead  may  be  sold  from 
execution  or  attachment  until  it  may 
be  invested  in  another  homestead, 
except  in  cases  of  involuntary  sales, 
which  provision  is  not  applicable  to 
this  case.  Our  statutes  are  silent 
upon  the  question  under  considera- 
tion. They  contain  no  provisions  for 
an  exchange  of  one  homestead  for 
another,  nor  the  purchase  of  another 
with  the  proceeds  of  the  sale  of  the 
one  exempt,  nor  for  the  exemption 
of  the  new  homestead  so  purchased. 
.  .  .  The  statutes  of  some  of  the 
states  permit  the  exchange  of  one 
homestead  for  another,  and  the  sale 
of  one,  and  with  the  proceeds  thereof 
the  purchase  of  another,  and  hold 
the  latter  exempt  from  attachment 
and  execution;  but  states  having 
such  statutes  do  not  require  the 
making  and  filing  of  a  homestead 
declaration  as  a  precedent  condition 
to  the  procurement  of  a  homestead, 
and  its  exemption  from  attachment 
and  execution.  We  are  of  the  opinion 
that,  under  our  statutes,  a  residence 
purchased  with  the  proceeds  of  the 
sale  of  a  former  homestead,  which 
was  exempt  from  attachment  and 
execution,  does  not  for  that  reason 
become  a  homestead,  and  exempt 
from  attachment  and  execution  un- 
der our  homestead  laws.  The  re- 
quired homestead  declaration  must 
be  filed  in  order  to  secure  the  benefit 
of  the  exemption  laws.     The  judg- 


ATTACHMENT    LIENS.  309 

steads  are  not  attachable  for  such  debts.'  They  are  liable  for 
debts  contracted  before  the  time  when  the  exemption  charac- 
ter was  impressed  on  the  homestead,  and  they  cannot  be  saved 
from  the  effect  of  the  writ  by  pleading  that  character  under 
such  circumstances.^  Homesteads,  being  exempt  from  ordinary 
debts  contracted  after  they  have  been  established,  may  be 
saved  from  attachment  by  timely  plea,  just  as  they  may  be 
saved  from  execution  by  the  same  means.  The  ordinary  cred- 
itor cannot  make  his  debt  a  lien-bearing  one  as  to  the  debtor's 
homestead  by  means  of  attachment  if  the  debtor  will  exercise 
his  right  to  have  the  attachment  dissolved  by  showing  to  the 
court,  in  the  attachment  proceedings,  that  the  attached  prop- 
erty is  exempt.' 

Will  the  attachment  of  a  homestead  be  effectual,  if  the 
debtor  fail  to  plead  exemption  to  dissolve  it?  If  he  sit  idly 
by  and  see  the  attachment  followed  by  judgment  against  his 
homestead,  will  the  effect  be  to  fasten  a  lien  upon  the  prop- 
erty? Or  would  the  whole  attachment  proceeding  be  an  ab- 
solute nullity? 

It  is  said  to  be  unnecessary  for  the  defendant  to  set  up  his 
homestead  right  when  the  plaintiff  has  made  no  allegation  rel- 
ative to  it  which  requires  an  answer.*  But,  though  there  be 
no  mention  of  the  debtor's  homestead  in  the  attachment  plaint- 
iff's pleadings  (as  there  ordinarily  is  not),  the  sheriff's  return 
is  in  the  case ;  and  if  that  shows  that  the  homestead  has  been 
attached  under  the  pleadings,  is  there  no  necessity  for  the  de- 
fendant to  set  up  his  homestead  right  if  he  Avould  save  it? 

ment  of  the  court  below  should  be  12  Johns.  220 ;  Wilson  v.  Paulson,  57 

affirmed,   and   the   respondents    are  Ga.  596 ;  Cox  v.  Milner,  23  111.  422 ;  Sa- 

entitlcd  to  judgment  against  the  ap-  very  v.  Browning,  18  la.  246 ;  Nash- 

pellant  for  their  costs  on  this  appeal,  ville  Bank  v.  Ragsdale,  Peck,    296; 

and  it  is  so  ordered."  Davis  v.  Garret.  3  Iredell,  459. 

1  Plant  V.  Smythe,  45  Cal.  161 ;  My-  2  Peake  v.  Cameron,  102  Mo.  568. 

ers  V.  Mott,  29  Cal.  359 ;  Crocker  v.  3  Hadley   v.    Bryars,   58  Ala.  139 ; 

Pierce,  31  Me.  177;  George  v.  Bassett,  Kelly  v.  Dill,  23  Minn.  435;  Barney 

54  Vt  217 ;  Rowell  v.  Powell,  53  Vt  v.  Keniston,  58  N.  H.  168 ;  Perkins  v, 

302 ;  Parks  v,  Cushman,  9  Vt.  320 ;  Bragg,  29  Ind.  507 ;  Clapp  v.  Thomas, 

Pierce  v.  Jackson,  6  Mass.  243 ;  Spen-  5  Allen,  158 ;  Na&h  v.  Farrington,  4 

cer  v.  Blaisdell,  4  N.  H.  198 ;  Halsey  Allen,  157 ;  Colson  v.  Wilson.  58  Me. 

V.  Fairbanks,  4  Mason,  206;  Sapping-  416;  Smith  v.  Chadwick,  51  Me.  515; 

ton  V.  Oeschli.  49  Mo.  244;  Reed  v.  Behymer  v.  Cook,  5  Colo.  395. 

Ownby,  44  ]\Io.  204 ;  Peake  v.  Cam-  *  Willis  v.  Matthews,  46  Tex.  488 ; 

eron,  102  Mo.  568 ;  Handy  v.  Dobbin,  Tadlock  v.  Eccles,  20  Tex.  790. 


310  LIABILITIES. 

The  general  proposition  is  true  that  an  attachment  lien  can- 
not be  created  on  exempt  property,'  provided  the  exemption 
is  pleaded ;  provided  the  defendant  uses  the  means  of  prevent- 
ing such  result.  Courts  are  not  presumed  to  know  that  the 
attached  property  is  exempt.  Even  where  homesteads  are  re- 
corded, and  where  the  record  is  notice  to  all  thd  world,  it  is  not 
notice  to  the  courts  in  such  a  sense  as  to  require  or  even  to 
authorize  them  to  take  judicial  cognizance  of  the  exemption. 
Even  if  they  were  deemed  affected  by  the  notice,  may  there 
not  be  a  homestead  waiver?  If  the  defendant  chooses  to  let 
his  homestead  become  saddled  with  a  property  debt,  is  the  court 
to  prevent  him?  If  he  chooses  to  let  his  homestead  be  sold 
under  an  ordinary  judgment  and  execution,  is  the  court  to  pre- 
vent him?  Leaving  out  of  the  question  all  others'  rights, 
and  confining  the  matter  in  hand  to  the  exemptionist  himself, 
it  seems  that  he  would  be  concluded  by  allowing  his  home- 
stead to  become  subject  to  a  perfected  lien ;  and  that  an  attach- 
ment would  ripen  into  such  a  lien  if  allowed  to  take  its  course, 
whether  the  res  be  a  homestead  or  some  other  thing. 

It  has  recently  been  held  that  a  defendant  whose  homestead 
is  attached  may  delay  till  after  judgment  and  then  success- 
fully claim  the  res? 

This  ruling  was  made  in  a  case  where  a  debtor  claimed 
homestead  in  property  on  which  he  had  not  lived  for  six  years, 
and  who  had  had  a  home  elsewhere  during  the  time.  On  the 
trial  he  professed  to  have  had  an  intention  to  return  during 
his  absence.  It  was  not  a  case  of  selection  after  general  judg- 
ment, but  of  maintenance  of  homestead  despite  a  lien  created 
by  attachment  proceedings  in  which  he  had  not  sought  to  dis- 
solve the  attachment  on  the  ground  that  the  res  was  his  home- 
stead and  therefore  exempt.  The  doctrine  of  the  case  is  that 
the  attachment  of  a  homestead  is  an  absolute  nullity.  The 
court  said  such  conclusion  relative  to  attachment  had  never 
before  been  declared  in  the  state,  but  referred  to  cases  in 
which  it  had  been  "  adverted  to."  ^ 

The  facts  of  this  case  show  the  danger  of  the  doctrine.  The 
defendant's  long  absence,  with  a  home  elsewhere,  may  have 

1  Ackley  v.  Chamberlain,  16  Cal.  ^  Citing  Irwin  v.  Taylor,  48  Ark. 
181 ;  Bowman  v.  Norton,  16  Ca).  220.  226 ;  Reynolds  v.  Tenant,  51  Ark.  87 ; 

2  Robinson  v,  Swearingin  (Ark.),  17  Richardson  v.  Adler,  46  Ark.  43. 
S.  W.  365. 


ArrACHMENT    MEXS.  311 

led  the  attaching  creditor  to  believe  that  he  had  abandoned 
his  homestead ;  and  an  abandoned  homestead  is  always  liabhi 
to  attachment.^  The  plaintiff  could  not  know  of  his  debtor's 
secret  intention  to  return  during  his  six  years  of  absence.  This 
is  only  one  of  many  cases  in  which  the  continuance  of  a  de- 
clared homestead  is  doubtful.  If  the  exemptionist  need  not 
plead  to  attachment,  but  may  sit  supinely  by  and  treat  the 
proceeding  as  an  absolute  nullity,  he  could  thus  put  his  creditor 
to  disadvantage  in  all  doubtful  cases.  He  could  keep  him 
from  attaching  liable  property  after  this  exempt  property,  to 
an  amount  sufficient  to  satisfy  the  debt,  had  been  attached. 
And  there  are  so  many  cases  of  doubtful  homestead  right, 
constanth^  occurring,  that  the  rule  of  absolute  nullity  would 
prove  mischievous.  On  the  other  hand,  it  is  always  perfectly 
easy  and  practicable  for  the  homestead  holder  to  set  up  his 
exemption  in  the  attachment  case,  and  have  the  attachment 
dissolved. 

It  is  true  that  the  attaching  creditor  has  notice,  either  b}' 
record  or  known  occupancy,  that  the  homestead  is  exempt ; 
and,  therefore,  it  may  be  argued  that  the  debtor  ought  not  to 
be  required  to  go  to  the  trouble  and  expense  of  pleading  his 
exemption  right  in  order  to  defeat  an  attachment.  But  the 
debtor's  hardship  is  no  greater  than  that  of  any  property- 
holder  who  has  a  perfect  title,  yet  is  driven  to  defend  and  set 
it  up  against  an  action  of  ejectment.  It  seems  for  the  public 
good  that,  instead  of  letting  a  homestead-holder  sit  by  till  an 
attachment  has  ripened  into  judgment  and  then  claim  exemp- 
tion, the  better  rule  would  be  that  he  must  plead  his  right  be- 
fore judgment,  or  be  deemed  to  have  waived  it. 

If,  under  the  operatii^n  of  this  rule,  the  occupant  of  a  re- 
corded or  otherwise  publicly  known  homestead  should  be 
wantonly  put  to  expense  and  annoyance  by  fruitless  attach- 
ments, he  has  such  remedy  in  damages  as  one  would  have  for 
ejectment  suits  brought  Avithout  color  of  cause,  merely  to 
worry  him  and  subject  him  to  expense. 

In  the  present  state  of  the  law  as  given  by  the  courts,  it  is 
the  safer  course  for  the  ])ractitioner  to  plead  homestead  in  an 
xittachment  case  and  have  the  suit  set    aside,   rather  than  to 

'  Larabee  v.  Wood,  54  Vt.  452 ;  Goodall  v.  Boardnian,  53  Vt.  92. 


8 1  2  LIABILITIES. 

risk  his  client's  right  of  homestead  by  allowing  the  case  to  go 
on  to  judgment.  Should  the  court,  after  judgment,  hold  that 
a  valid  lien  has  been  fastened  on  the  property,  it  must  be  re- 
membered that  it  is  well  settled  homestead  law  that  there  can 
be  no  exemption  against  any  valid  lien. 

It  is  not  onlv  safer  to  plead,  but  it  is  necessary  to  do  so  to 
save  the  homestead  wherever  non-action  is  deemed  waiver. 
Presumption  of  waiver,  created  by  failure  to  plead  exemption, 
may  possibly  be  removed ;  ^  but  it  cannot  be  done  effectually 
after  the  maturity  of  a  valid  attachment  lien.  And  it  is  not 
universally  conceded  that  the  lien  may  be  saddled  on  a  home- 
stead when  the  defendant  allows  the  case  to  go  on  to  judg- 
ment against  him  because  of  his  failure  to  defeat  it  by  plead- 
ing exemption.  Even  where  he  appeared  in  the  case  and  set 
up  other  defenses  but  neglected  this,  he  was  not  held  to  have 
waived  his  homestead  immunity,  but  allow^ed  to  claim  it  after 
judgment,  in  an  attachment  case.  The  court  mentioned  the 
fact  that  exemption  had  not  been  pleaded,  by  way  of  argu- 
ment to  prove  that  it  had  not  been  passed  upon  by  the  court, 
and  was  therefore  still  available. 

The  court  said :  "  The  only  question  involved  in  this  case  is 
whether  lot  No.  5,  in  block  No.  16,  in  the  city  of  Bunker  Hill, 
in  Russell  county,  was  and  is  exempt  as  a  homestead  from  a 
certain  attachment  and  judgment  and  order  of  sale.  The  at- 
tachment was  levied  upon  the  property  on  June  30,  1888. 
The  judgment  w^as  rendered  on  October  8,  1888,  and  the  prop- 
erty was  sold  on  an  order  of  sale  issued  on  such  judgment  on 
January  26,  1889;  and  on  March  2,  1889,  Andrew  Hill,  who 
was  the  defendant  below,  and  the  judgment  debtor,  and  who 
is  now  the  defendant  in  error,  moved  the  court  to  set  aside 
the  sale  upon  the  ground  '  that  at  the  time  of  the  rendition 
of  said  judgment  said  lot  5,  block  16,  was,  and  for  a  long  time 
prior  thereto  had  been,  and  ever  since  has  been,  a  part  of  the 
homestead  of  said  defendant  and  his  family,  used  and  occu- 
pied as  such,  and  exempt  from  seizure  and  sale  by  virtue  of 
process  issued  on  such  judgment.'  The  court  sustained  the 
motion,  and  the  plaintiff,  M.  Hoffman,  brought  the  case  to 
this  court  for  review.     As  the  court  below  found  in  favor  of 

1  Hoisington  v.  Armstrong,  22  Kaa.  110. 


ATTACHMENT   LIENS.  313 

Hill,  the  party  claiming  the  property  as  his  homestead,  and 
against  Hoffman,  the  party  claiming  under  the  attachment, 
the  judgment,  and  the  order  of  sale,  and  the  sale,  it  will  be 
proper  for  this  court  to  construe  the  evidence  introduced 
upon  the  motion  to  set  aside  the  sale  liberally  for  the  purpose 
of  upholding  the  views  of  the  court  below;  and,  construing 
the  evidence  in  this  manner,  we  think  the  facts  of  the  case  are 
substantially  as  follows :  For  several  years  prior  to  the  levy 
of  the  aforesaid  attachment  Hill  was  the  owner  of  lots  Nos.  5 
and  6,  in  block  No.  16,  in  the  city  of  Bunker  Hill.  These  lots 
adjoined  each  other,  and  constituted  only  a  single  tract  of 
land,  and  together  contained  only  about  one-eighth  of  an  acre. 
Hill  was  the  head  of  a  family  consisting  of  himself  and  his 
wife  and  an  adopted  daughter.  There  was  a  building  on  lot 
No.  6,  the  porch  of  which  extended  over  the  boundary  line 
between  the  two  lots  and  onto  lot  No.  5,  which  building  Hill 
and  his  family  occupied  and  used  as  a  residence,  and  also  as  a 
hotel  and  boarding-house.  There  was  also  a  building  on  lot 
No.  5,  which  Hill  and  family  used  in  connection  with  their 
residence,  hotel  and  boarding-house.  There  were  also  out- 
buildings partly  on  both  lots.  Hill  and  his  family  in  fact  used 
these  two  lots  together  as  a  homestead  and  for  hotel  and 
boarding-house  purposes ;  and  this  they  had  done  for  several 
years  prior  to  the  levy  of  the  aforesaid  attachment,  and  they 
still  occupy  the  same  for  such  purposes.  Hoffman  claims  that 
the  property  is  not  a  homestead  under  the  provisions  of  the 
homestead  exemption  laws,  for  several  reasons,  but  none  of 
them  are  tenable.  He  also  claims  that  the  question  as  to 
whether  the  property  was  a  homestead  or  not  had  been  pre- 
viously determined  by  the  court  upon  a  motion  to  dissolve 
the  attachment,  and  had  therefore  become  res  adjudicata. 
But  the  motion  to  dissolve  the  attachment  was  not  based 
upon  the  ground  that  the  propert}^  was  a  homestead,  nor  did 
it  in  any  manner  present  any  such  ground ;  and  it  was  not 
filed  or  prosecuted  by  Hill  and  wife,  but  by  Hill  alone.  Mrs. 
Hill  was  not  a  party  to  the  action,  nor  did  she  make  any  ap- 
pearance in  the  case ;  and  it  does  not  appear  that  she  ever 
consented  to  the  attachment  or  the  judgment  or  the  order  of 
sale  or  the  sale.  The  motion  to  discharge  the  attachment  was 
based  upon  the  ground  that  the  grounds  for  the  attachment 


:U4 


LIABILITIES. 


were  not  true.  We  think  the  decision  of  the  court  below  in 
this  case  must  be  affirmed." 

And  the  court  further  added  that  it  had  held  uniformly  that 
no  alienation  of  the  homestead  of  a  husband  and  wife,  and  no 
subjection  of  it  to  any  lien  or  incumbrance,  can  be  effected 
without  their  joint  consent,  except  for  taxes,  purchase-money 
and  improvements.^ 

Doubtless  joint  action  is  requisite  in  selling  their  homestead 
or  voluntarily  subjecting  it  to  any  lien ;  but  are  the  three  lia- 
bilities, named  by  the  court,  the  only  exceptions  to  the  crea- 
tion of  liens  without  their  consent?  There  are  several  federal 
statutes  under  which  liens  may  be  created  upon  a  homestead. 
If  the  householder  establish  a  distillery  upon  his  homestead 
lot  without  payrng  the  required  tax  in  advance  and  without 
complying  with  the  other  requisites,  the  land  and  buildings 
as  well  as  the  paraphernalia  of  the  distillery  may  be  seized 
and  a  lien  thus  created  under  which  the  government  may  pro- 
ceed in  rem  and  have  the  homestead  condemned  and  sold  as 
forfeited.^  There  may  be  forfeiture  of  realty  under  an  insur^ 
rection  law  still  upon  the  statute-book,  by  process  in  7'em.^ 
and  homesteads  form  no  exception.  Judgments  for  torts  are 
usually  enforceable  against  homesteads. 

The  court  probably  meant  that,  as  a  general  rule,  married 
persons  must  join  in  oi'der  to  sell  or  incumber  their  home- 
stead, but  did  not  think  it  necessary  to  advert  to  forfeitures. 
The  particular  thing  meant  was  that  attachment  is  not  an  ex- 
ception. But  would  it  be  denied  that  they  ma}'^  waive  exemp- 
tion, in  case  of  attachment,  either  expressly  or  impliedly? 
And  could  there  be  stronger  implication  than  failure  to  plead 
exemption  when  setting  up  other  defenses?  It  would  have 
been  an  effective  plea  m  the  attachment  case  under  review. 
The  attaching  creditor  would  have  asked  that  the  homestead 
be  segregated  from  the  part  not  exempt,  and  would  have  main- 
tained his  attachment  as  to  the  latter,  if  the  plea  had  been 
filed.  As  it  was,  he  was  cut  off  from  all  remedy  by  the  laches 
of  the  defendant.  The  court  stated  that  the  property  at- 
tached was  not  all  in  use  as  a  homestead,  yet  held  all  free 


1  Hoffraau  v.  Hill  (Kas.),  28  P.  633, 
citing  Morris  v.  Ward,  5  Kas.  239. 

2  United   States  v.   A  Distillery,  2 


.Blatch.    192;  Dobbins'  Distillery,  m 
U.  S.  395. 
3U.  S.  Rev.  St.,  g§  5308-11. 


ArrAcirMKNT  mkxs.  315 

from  the  attachment  that  had  been  prosecuted  to  judgment 
in  default  of  an  exemption  plea.  The  opinion  states:  "  It  fol- 
lows from  the  decisions  made  by  this  and  other  couits  of  last 
resort  that  it  makes  no  difference  that  the  homestead,  or  a 
part  thereof,  may  be  used  for  some  other  purpose  than  as  a 
homestead  where  the  whole  of  it  constitutes  only  one  tract  of 
land  not  exceeding  in  area  the  amount  permitted  to  be  ex- 
empted under  the  homestead  exemption  laws,  and  where  the 
part  claimed  as  not  a  part  of  the  homestead  has  not  been 
totally  abandoned  as  a  part  thereof  by  making  it,  for  instance, 
anotlier  person's  homestead  or  a  part  thereof,  or  by  using  it 
or  permitting  it  to  be  used  in  some  other  manner  inconsistent 
with  the  homestead  interests  of  the  husband  and  wife." ' 

It  has  been  decided,  upon  reasoning  which  should  pass  cur- 
rent everywhere,  that  when  a  portion  has  been  segregated 
from  the  homestead,  the  attachment  of  it  cannot  be  defeated 
by  the  plea  of  exemption.- 

In  states  where  the  homestead-holder  must  plead  his  rights 
against  attachment  (as  well  as  against  ejectment  or  any  other 
wrongful  procedure  against  his  homestead),  the  plaintiff's  rights 
are  secured ;  for  he  may  cause  an  excessive  homestead  to  be 
laid  oft',  or  an  abandoned  portion  segregated,  when  he  finds 
that  his  suit  will  not  hold  all  that  has  been  attached,  upon  the 
defendant's  claiming  exemption.    And,  if  all  is  exempt  and  so 

1  Contra,  a  wife  has  been  held  con-  that  tliere  was  sufficient  evidence  ad- 
cluded  by  her  husband's  not  pleading,  duced  to  sustain  the  court  in  finding 
Baxter  v.  Dear,  24  Tex.  17.  that  the  debtor  had  manifested  the 

2  Curtis  V.  Des  Jordins  (Ark.),  17  intent  to  contract  the  limits  of  his 
S.  W.  7C9.  Cockrill,  C.  J.:  ''The  homestead,  and  that  the  separation 
bill  of  exceptions  does  not  profess  to  had  been  effected  prior  to  the  act  of 
contain  all  the  evidence  introduced  March  18,  1887,  which  prohibits  the 
upon  the  trial.  The  only  question,  conveyance  or  incumbrance  of  the 
therefore,  is,  does  the  judgment  fol-  homestead  without  the  assent  of 
low  from  the  court's  special  finding  the  wife,  if  that  act  may  be  said  to 
of  facts?  The  finding  is,  in  sub-  affect  such  a  case.  Railway  Co.  v. 
stance,  that  the  store-house  which  Amos,  54  Ark.  162;  15  S.  W.  363. 
was  condemned  to  be  sold  under  the  After  the  separation,  the  segregated 
attiichment  had  been  segregated  bj'  part  was  not  embraced  within  the 
the  judgment  debtor  from  his  home-  homestead  (Klenk  v.  Knoble,  37  Ark. 
stead  propert3^  The  question  as  to  303),  and  was  therefore  the  subject 
what  constitutes  such  a  separation  is  of  seizure  and  sale." 

not  presented,  for  the  presumption  is 


116 


r.IAIilLITIES. 


claimed,  he  may  be  in  time  to  look  to  other  property  to  make 
his  money. 

In  ^^ates  where  the  husband  represents  and  binds  the  otiier 
homestead  beneficiaries  in  litigation  involving  the  home  as  in 
any  other,  he  defends  against  attachment  for  all ;  and  if  the 
result  is  against  him  they  are  concluded.^  In  those  where  the 
wife  must  be  made  a  party  and  served  with  process,  her  posi- 
tion is  that  of  an  attachment  defendant,  and  she  may  plead 

•  homestead  though  he  do  not,  and  save  the  home  for  all  the 

*  beneficiaries.  In  states  w^here  she  is  not  made  a  party  yet 
privileged  to  make  herself  one,  she  may  intervene,  in  the  suit 
against  her  husband,  and  plead  homestead.-  She  may  be  pre- 
sumed to  know  of  the  attacliment,  since  it  is  the  duty  of  the 
officer  to  take  possession  under  the  writ.  But  as  real  estate 
is  not  subject  to  manucaption,  and  may  be  seized  by  giving  the 
husband  notice  of  seizure  and  making  return  to  court,  she 
may  not  know  in  fact,  that  the  attachment  has  been  laid.  In 
such  case,  it  would  be  hard  for  her  to  have  an  attachment  lien 
perfected  against  her  homestead  because  her  husband  has  failed 
to  plead  exemption.  And  her  rights,  under  some  statutes, 
would  remain  in  the  homestead  —  the  lien  being  subject  to 
them.    Under  others,  her  failure  to  plead  would  conclude  her.^ 

If  the  homestead  be  sold  on  credit,  with  no  view  of  buying 
another  with  the  price  when  collected,  the  credit  may  be  at- 
tached.^ For,  in  such  case,  the  beneficiaries  have  given  up 
their  benefit  voluntarily,  and  the  state's  policy  of  making 
homes  permanent  would  not  be  furthered  by  saving  the  price 
to  them  to  the  prejudice  of  their  creditors. 

So,  if  a  debtor  has  absconded  from  the  state,  or  has  become 

a  non-resident,  there  would  seem  to  be  no  reason  why  a  home 

should  be  conserved  for  him,  though  his  family  might  be  kept 

^  together  in  it,  to  the  good  of  the  state.    Attachment  has  been 

''  allowed  under  such  circumstances.* 

When  the  homestead  law  confines  exemption  to  realty,  it 
has  been  held  that  the  surplus  proceeds  of  a  sale  of  the  home- 
stead under  a  deed  of  trust  are  subject  to  garnishment,  if  the 


1  Barfield  v.  Jefferson,  84  Ga.  609. 

2  McCluie  V.  Braniflf,  75  la.  38. 

3  Graliam  v.  Culver  (Wy.),  29  P.  270. 

4  Knabb  v.   Drake,  23  Pa.  St.  489 ; 
Scott  V.  Brigham,  27  Vt.  561. 


5  See  McCarthy's  Appeal,  68  Pa.  St. 
217;  Yelverton  v.  Burton,  26  Pa.  St 
351 ;  Board  of  Comm'rs  v.  Riley.  !•) 
N.  C.  144;  McBrayer  v.  Dillard.  49 
Ala.  174. 


ATTACHMENT    LIENS.  317 

debtor  failed  to  set  up  his  homestead  right  in  the  land  at  the 
proper  time.^  If  the  wife  joined  in  such  deed,  she  cannot 
afterwards,  as  a  widow,  have  surplus  proceeds  assigned  her  as 
homestead,  after  the  foi'eclosure.^  The  consideration  received 
for  the  deed  of  trust,  if  covering  the  homestead  right,  leaves 
nothing  further  to  be  claimed. 

Whether  the  proceeds  of  a  homestead  sale  are  liable  to  at- 
tachment or  garnishment  depends  upon  the  disposition  which 
the  vendors  mean  to  make  of  them.  They  would  be  liable  if 
held  for  ordinary  purposes,^  but  not  if  held  to  purchase  an- 
other homestead.*  This  distinction  is  pretty  general  where 
there  is  no  statutory  provision  making  a  different  local  rule. 

While  a  homestead,  or  the  money  from  its  sale  held  for  re- 
investment in  another  home,  is  as  exempt  from  attachment  as 
from  execution,  and  will  be  protected  from  either  writ  when 
the  exempt  character  is  brought  to  the  knowledge  of  the  court, 
it  may  be  attached  when  excessive  in  quantity  if  the  exempt 
portion  be  reserved  to  the  debtor  and  saved  from  the  opera- 
tion of  the  lien.*  If  the  surplus  can  be  distinguished  from 
the  exempt  quantity,  only  that  ought  to  be  attached ;  but  if 
the  whole  is  proceeded  against,  the  plaintiff  should  except  the 
exempt  portion  in  the  prayer  for  judgment  with  privilege.  If 
he  does  not,  the  court  should  except  it  in  the  judgment.  This 
will  be  found  applicable  only  when  homesteads  are  not  re- 
quired to  be  set  out  by  metes  and  bounds,  or  their  value  ascer- 
tained by  appraisement,  when  the  benefit  first  begins. 

It  goes  without  the  saying  that  homesteads  may  be  at- 
tached for  such  debts  as  antedate  the  beginning  of  exemption, 
or  any  others  not  affected  by  exemption,  provided  the  statu- 
tory conditions  for  resort  to  the  extraordinary  remedy  exist. 
In  such  case,  the  attachment  lies  as  against  any  other  prop- 
erty.® 

A  husband  owned  land  under  a  contract  for  a  deed.  He 
assigned  to  his  wife  and  it  became  the  homestead  of  both.    A 

1  Casebolt  v.  Donaldson,  67  Mo.  309.     Schneider  v.  Bray.  59  Tex.  670 ;  Kess- 

2  Woerther  v.  Miller,  13  Mo.  Ap.  ler  v.  Draub,  52  Tex.  575 ;  Wolfe  v. 
567.  Buckley,   53  Tex.   641;    Watkins  v. 

'  Kirby  v.  Giddings,  75  Tex.  679  ;  Blatschinski,  40  Wis.  347. 

Mann  v.  Kelsey,  71  Tex.  609 ;  Whit-  **  Parker  v.  Coop,  60  Tex.  ill. 

tenberg  v.  Lloyd,  49  Tex.  633.  ^  Thompson  v.  Wickei-sham.  9  Bax, 

« Watkins  v,  Davis,  61   Tex.  414;  216. 


318  LIABILITIES. 

judgment  Avas  rendered  against  him  after  the  assignment; 
subsequently,  his  wife  was  garnished  for  the  same  debt  and  judg 
ment  against  her,  as  garnishee,  was  rendered.  Neither  judg- 
ment held  good  against  the  land  :  the  former,  because  the  land 
contract  was  not  his,  having  been  conveyed  at  a  time  when 
he  is  presumed  to  have  been  solvent,  and  ostensibly  for  valid 
consideration;  the  latter,  because  the  land  was  her  homestead 
when  it  was  conveyed  and  when  the  judgment  of  garnishment 
was  rendered.^ 

(3)  Effect  of  tJie  jperfeded  attachment  lien  iqjon  the  honu- 
stead:  Attachment  is  always  subject  to  existing  incumbrance 
resting  u])on  the  property  attached.  The  property  debt  of 
the  thing  adjudged  to  have  been  validh'  attached  ranks  below 
older  lien  debts  and  below"  prior  incumbrances,  whetbe:' 
founded  upon  debt  or  not.  The  plaintitT  attaches  only  the 
defendant's  right  in  the  thing.  The  proceeding  is  iji  rem,  but 
the  res  is  the  defendant's  property  right  only  —  not  also  other's 
rights.  The  action  is  not  a  general  but  a  limited  proceed- 
ing iQi  rem.  So  the  attachment  lien,  perfected  by  judgment 
retroacting  to  the  date  of  the  attaching,  rests  on  what  the  de- 
fendant's property  right  is.  The  title  of  the  property  being 
in  him,  the  lien  is  good  as  to  that;  but  incumbrances  on  the 
property  existing  before  the  attachment  are  not  affected. 

Wherever,  in  any  state,  the  homestead  benefit  of  the  fam- 
ily—  the  wife  and  children  —  is  held  to  be  an  incumbrance 
upon  the  title  of  homestead  property;  wherever  these  benefi- 
ciaries are  recognized  as  having  legal  rights  in  such  prop- 
erty—  in  its  enjoyment  though  not  m  its  title  —  the  attach- 
ing creditor  must  be  understood  to  attach  subject  to  such 
rights.  And  only  what  is  attached  is  affected  by  the  perfec- 
tion of  his  inchoate  lien  by  judgment. 

The  beneficiaries'  right,  or  their  incumbrance  on  the  prop- 
erty, differs  from  an  incumbrance  by  mortgage  and  like  liens ; 
it  is  not  a  lien  in  any  proper  sense;  it  is  more  nearly  akin  to 
a  servitude;  but  it  burdens  the  property  and  is  as  clearly  ir- 
removable by  a  subsequently  created  lien  as  a  prior  mortgage 
would  be.  The  state  having  provided  for  the  burdening  of 
homestead  property  in  this  novel  form,  from  motives  of  pub 

1  Belden  v.  Younger,  76  Iowa,  567. 


ATTAOIIMKNT    I.IKNS.  319 

lie  policy  to  conserve  homes,  cannot  have  meant  that  junior 
incumbrances  should  be  marshaled  above  the  homestead  right 
of  the  family. 

The  husband,  who  is  the  head  of  the  family  and  the  title 
holder,  cannot  claim  to  own  an  incumbrance  on  his  own  prop- 
erty; no  one  can  hold  a  lien  upon  his  own  title;  no  one  can 
iiave  any  interest  in  property  adverse  to  his  right  to  his 
property.  It  follows,  that  the  husband  cannot  claim  any 
homestead  right  in  his  realty  as  against  his  title. 

The  effect  of  the  perfecting  of  the  creditor's  attachment  lien 
upon  the  homestead  of  the  debtor  is  to  make  the  property  liable 
to  the  vindication  of  that  lien,  and  to  leave  the  debtor-owner 
without  any  recourse.  lie  has  no  incuml)i'ance  to  interfere.  His 
I'ight  of  property  is  liable  to  be  sold  to  satisfy  the  lien.  But  sale 
must  be  subject  to  the  right  (or  incumbrance,  if  the  term  is  al- 
lowable) of  the  wife  and  children,  whose  enjoyment  of  the  ])rop- 
erty,for  the  period  of  homestead  endurance,  is  secured  by  law. 
They  must  be  left  undisturbed  in  their  home,  while  he  —  not 
as  a  co-incumbrancer  but  as  the  husband  —  must  be  left  with 
them  that  the  family  may  remain  intact,  and  the  policy  of  the 
state  respected. 

That  this  is  his  position  seems  clear  upon  the  reflection  that 
a  homestead-holder  without  a  family  (a  character  tolerated  in 
some  states)  would  have  nothing  to  protect  him  in  his  con- 
tinued residence  in  a  homestead  subjected  to  a  valid  attach- 
ment lien  upon  his  property  right  therein,  and  sold  to  satisfy 
such  lien.  He  would  stand  precisely  as  though  he  had  sold 
the  property  himself  at  private  sale.  He  would  have  no 
marital  or  parental  relations  to  bind  him  to  the  home.  He 
liad  no  ineumhrance  in  the  nature  of  homestead  right,  on  the 
property:  so,  when  the  title  is  gone,  all  is  gone. 

The  husband-father  has  no  right  of  continued  occupancy 
after  valid  forced  sale  to  satisfy  the  attachment  lien  on  his 
propert}"^  dedicated  as  the  family  homestead,  any  more  than  his 
bachelor  or  childless-widow^er  neighbor  would  have,  except  as 
the  head  of  a  family  which  has  homestead  right,  with  whom 
it  is  his  privilege  and  his  duty  to  live.  The  subsequent  loss 
of  his  family  w^ould  be  to  him  the  loss  of  his  right  to  stay. 
The  death  of  his  wife  and  the  arrival  of  all  his  children  to 
the  age  of  majority  would  leave  him  without  anything  to 


320 


LIAIJILITIES. 


support  a  claim  to  occupancy.  Then  the  purchaser  at  the  at- 
tachment sale  could  take  possession. 

Must  the  wife  plead  homestead,  in  behalf  of  herself  and  the 
minor  children  when  there  are  any,  to  save  their  rights  against 
attachment?  It  has  been  shown  that  the  general  rule  is  that 
the  owner  of  an  attached  homestead  must  plead  exemption 
before  judgment,  if  he  would  prevent  the  perfecting  of  the 
attachment  lien ;  that  the  homestead  is  not  liable  to  attach- 
ment, but  that  waiver  is  presumed  in  the  absence  of  plea; 
that  by  pleading  exemption  and  sustaining  the  plea  by  proof, 
the  attachment  may  be,  and  of  right  must  be,  dissolved.  If 
the  husband,  the  head  of  the  family,  and  the  owner  of  the 
homestead  property,  fails  to  plead  exemption,  the  wife  may 
do  so  in  some  states,  and  save  both  the  title,  and  the  rights 
of  any  sort,  to  or  in  the  homestead  property  from  having  an 
attachment  lien  fastened  upon  it. 

Pleading  is  necessary  to  keep  the  property  free  from  lien; 
but  the  question  above  put  is  whether  it  is  necessary  in  order 
to  preserve  the  wife  and  children's  rights  to  the  continued  en- 
joyment of  the  homestead.  No.  They  hold  the  right  as  an 
incumbrance  or  servitude  upon  the  property,  and  it  stands 
good,  like  a  mortgage,  without  being  set  up  in  the  attachment 
proceedings.  It  has  no  business  to  oppose  the  creation  of  a 
junior  incumbrance  which  cannot  affect  itself  —  just  as  a  senior 
mortgage  is  unconcerned  about  the  birth  of  a  junior. 

The  family,  apart  from  the  member  of  it  who  holds  the 
title,  owns  no  property  in  the  homestead  —  nothing  that  it 
can  sell,  or  mortgage,  or  lease,  or  donate  —  but  has  rights  in 
it  secured  by  law  which  the  attachment  is  not  directed 
against,  and  which  the  family  therefore  need  not  plead. 

If  a  widower,  with  minor  children,  has  his  homestead  at- 
tached, is  his  plea  of  exemption  necessary  to  save  his  chil- 
dren's right  to  the  enjoyment  of  the  home  till  their  majority? 

The  father  is  the  natural  guardian  of  his  infant  children 
and  represents  them  in  legal  matters.  He  represents  his  wife 
too,  ordinarily,  though  in  homestead  law  she  stands  apart 
from  him  so  far  as  to  be  not  affected  by  his  failure  to  plead; 
but  the  rule  is  not  universal.  As  a  beneficiary  of  the  ex- 
emption provision,  she  is  not  cut  off  by  his  failure  to  plead, 
as  above  shown ;  as  the  holder  of  a  peculiar  incumbrance,  she 


ATTACHMENT    HENS.  321 

is  not  put  below  a  subsequent  lienlioldcr  by  attachment  so  far 
as  occupancy  is  concerned,  though  she  does  not  compete  with 
him  as  having  anything  affecting  the  homestead  title.  And. 
if  she  has  minor  children,  by  the  husband-owner,  they  share 
her  position.  But,  when  there  is  no  wife,  the  widower  repre- 
sents his  minor  children,  not  only  as  to  any  property  rights 
they  may  have  through  him  but  also  as  to  any  incumbrance 
or  right  of  enjoyment  they  have  in  his  homestead. 

It  may  be  asked  whether,  in  case  of  no  plea,  and  the  conse- 
quent completion  of  the  attachment  lien,  they  would  still  hold 
an  incumbrance  on  the  homestead  older  than  the  attachment 
lien  and  not  dislodged  or  outranked  by  it?  Not  if  their  father 
had  waived  it  for  them  by  failure  to  plead.  Just  as  a  senior 
mortgage  ma}'^  be  waived  in  favor  of  a  junior,  so  the  peculiar 
homestead  incumbrance  may  be  waived  by  one  who  has  the 
control  of  it  and  the  right  of  waiver —  such  as  a  father  must 
have  respecting  the  homestead  right  of  his  motherless  chil- 
dren, unless  they  hold  by  their  own  right.^ 

Another  answer  is,  that  such  children  have  no  such  incum- 
brance independent  of  their  father  while  he  lives.  When  he 
waives  homestead  right  and  lets  the  property  go  under  an  at- 
tachment, the  children  are  in  the  position  they  would  have 
been  in  if  he  had  sold  the  property.  They  have  no  veto 
power  upon  the  sale  as  their  mother  had  when  living.  It  is 
true  that  their  homestead  rights  existing  at  their  father's 
deatli  may  survive  him.  The  law  so  provides.  The  policy 
of  the  state  is  to  keep  them  a  home.  But  it  is  not  the  policy 
of  the  state  to  keep  them  a  home  despite  their  living  father. 
They  must  abide  his  action ;  live  with  him;  go  with  him  when 
he  has  sold  his  home  or  has  let  it  be  sold. 

It  seems,  for  the  reasons  above  given,  that  the  homestead 
rights  of  present  enjoyment,  of  a  wife  and  children,  are  re- 
served to  them  without  pleading,  unaffected  by  a  perfected 
attachment  lien  vindicable  b}^  the  sale  of  the  title ;  but  that 
those  rights  of  the  wifeless  owner,  with  children,  need  to  be 
pleaded  in  order  to  be  saved. 

1  Children    inheriting    from    their    father  be  sold,  they  may  retain  the 
mother  become  tenants  in  common    homestead    during  their     minority, 
with  their  father.     Broad  v.  Murray,     Littell  v.  Jones  (Ark.),  19  S.  W.  497. 
44  Cal.  228.     If  the  curtesy  of  their 
21 


322  LIABILITIES. 

What  would  be  the  effect  of  fastening  an  attachment  lien 
upon  the  homestead  by  judgment  (through  the  failure  of  the 
debtor  to  plead  exemption),  at  a  time  when  he  has  a  wife  and 
minor  children  living  with  him  on  the  property,  upon  their 
rights  at  his  death?  Would  they  not  only  have  right  of 
asylum  while  he  should  live,  despite  the  lien  and  the  loss  of 
title  by  sale  thereunder,  but  also  after  his  death  —  she  during 
her  life  or  widowhood,  and  they  during  their  majority? 

The  attachment,  being  ab  initio  subject  to  the  inGumbrance 
they  held,  could  not  affect  such  homestead  rights.  The  judg- 
ment could  not  extend  the  lien  over  more  than  it  covered  in 
its  incipiency.  ^Nothing  lodged  in  others  could  be  reached  to 
pay  the  defendant's  liability.  The  case  may  be  likened  to  the 
sale  of  a  fee  subject  to  a  life  estate  for  years. 

The  right  of  survivorship  may  be  lost  to  the  widow,  so  far 
as  the  title  is  concerned,  by  the  creation  of  a  valid  lien  on  the 
homestead,  in  a  third  person,  and  sale  thereunder;  her  dower 
right  would  certainly  fall ;  but  her  homestead  right  of  asylum 
would  be  protected  when  not  subject  to  the  lien. 

§  8.  Tort. 
Exemption  laws  are  mostly  enacted  with  reference  to  the 
relation  of  debtor  and  creditor.  They  have  reference  to  heirs 
so  far  as  to  postpone  their  enjoyment  of  inherited  property 
under  some  circumstances.  But,  since  they  protect  from  ex- 
ecution against  debts  rather  than  other  liabilities;  against 
'*  debts  contracted,"  as  the  phrase  frequently  occurs  in  the 
homestead  statutes,  they  do  not  seem  to  contemplate  the  pro- 
tection of  a  wrong-doer  for  liability  for  his  own  torts,  or  for 
any  trespass  committed  b}'^  him.  Where  a  constitution  or 
statute  exempts  debtors'  homes  from  "  sale  on  execution,  or 
any  other  process  from  a  court,  for  any  debt  contracted  " 
(using  the  language  quoted  or  language  of  similp.r  import),  it 
is  generally  held  that  there  is  no  exemption  provided  from 
obligations  arising  from  torts.^ 

1  Konj^on  v.  Gould,  61  Pa.  St.  292 ;  Williams  v.   Bowden,  69  Ala.   433 ; 

Kiikpatrick  V.  White,  29Pa.  St.  170;  Meredith   v.   Holmes,   68   Ala.    190; 

Lathrop  v.    Singer,   39    Barb.    396 ;  Davis  v,  Heuson,  29  Ga.  345 ;  Edwards 

Schoutonv.  Kilmer,  8  How.  Pr.(N.Y.)  v.   Mahon,   5    Phila.    531;    Lane    v. 

527 ;  McLaren  v.  Anderson  (Ala.),  8  Baker,    2    Grant's    Cas.    (Pa.)    424 ; 

So.  188 ;  Vincent  v.  State,  74  Ala.  274 ;  Dorrell     v.    Hannah,   80    Ind.    497 ; 


TORT.  323 

Since  the  exemption  relates  to  '•  debt  contracted  "  only,  it 
does  not  screen  the  householder  against  a  judgment  awarding 
damages  against  him  for  breach  of  promise  to  marry,  which  is 
called  a  qvasi-tort} 

Exemption  from  sale- under  any  judicial  process,  "issued  on 
any  demand  for  any  debt  contracted,"  is  the  language  of  a 
constitution  under  which  it  was  held  that  a  fine  is  not  a"  debt 
contracted,"  in  the  sense  in  which  this  phrase  is  employed.'^ 
Where  the  phrase,  or  a  like  one,  occurs  in  other  constitutions, 
or  in  statutes,  it  does  not  extend  exemption  to  defeat  execu- 
tions for  torts.^ 

When  the  use  of  a  home  for  the  sale  of  intoxicating  liquors 
is  inhibited  by  law,  and  the  owner  incurs  pecuniary  penalties 
and  costs  for  such  use,  the  homestead  is  held  liable  under  the 
judgment  imposing  the  fine,  notwithstanding  the  fact  that  the 
Avrong-doer's  wife  and  co-householder  did  not  join  in  the  vio- 
lation of  the  law  and  consequent  subjection  of  their  home- 
stead to  a  monetary  burden.* 

A  defaulter,  having  funds  belonging  to  the  state,  cannot 
claim  the  privilege  of  a  debtor  and  treat  the  state  as  a  mere 
creditor,  and  shield  himself  under  exemption  and  homestead 
laws.^ 

When  the  claimant  of  the  homestead  seeks  to  prevent  exe- 
cution for  liability  for  his  own  crime  or  tort,  he  should  not  be 
treated  as  a  debtor  entitled  to  the  benefit  of  exem])tion.^  But 
whether  the  homestead  be  liable  for  the  torts  of  its  owner  de- 
pends upon  the  terras  of  the  exemption.  Courts  interpret  the 
restriction  upon  the  creditor's  remedy  according  to  its  expres- 

Smith  V.  Wood,  83  Ind.  522 ;  Gentry  3  Lathrop  v.  Singer,  39  Barb.  896 ; 

V.  Purcell,  84  Ind.  83 ;  Thompson  v.  Schouton  v.  Kilmer,  8  How.  (N.  Y.) 

Ross,  87  Ind.  156 ;  Nowling  v.  Mcln-  527 ;  Lane  v.  Baber,  2  Grant's  Cases, 

tosh,    89    Ind.     593 ;     Donaldson    v.  424 ;  Davis  v.  Henson,  29  Ga.  345. 

Banta  (Ind.),  29  N.  E.  362 ;  Ries  v.  *  McClure  v.  Braniff,  75  la.  38. 

McClatchey,  128  Ind.  125.  &  Vincent  v.  The  State,  74  Ala.  274. 

1  Burton  v.  Mill,  78  Va.  468 ;  Whit-  6  Williams  v.  Bowden,  69  Ala.  433 ; 

acre  v.  Rector,  29  Gratt.  714 ;  Grubb  Meredith  v.    Holmes,   68    Ala.    190 ; 

T.  Suit,  32  Gratt  203 ;  Wade  v.  Kalb-  Massie  v.  Enyart.  33  Ark.  688 ;  Smith 

fleisch,  58  N.  Y.  282 ;  1  Minor's  Inst,  v.  Ragsdale,  36  Ark.  297 ;  Lathrop  v. 

253 ;  4  lb.  457 ;  Va.  Code,  eh.  126,  §  19.  Singer,  39  Barb.  (N.  Y.)  396 ;  Tate  v. 

2Whiteacre   v.   Rector,    29  Gratt  Laforest  25  La.  Ann.  187  (denying 

714-15 ;  Const  Va,  art  11,  §  1 ;  Code,  the  benefit  of  insolvent  lav?), 
eh.  183. 


324  LIABILITIES. 

sion  in  the  constitution  or  statutes  which  they  are  called  upon 
to  interpret.  Under  phraseology  different  from  that  above 
quoted,  they  have  held  the  homestead  exempt  from  execution 
of  judgments  in  actions  of  tort.^ 

If  an  action  on  an  implied  contract  sounds  not  in  tort  but 
in  contract,  a  judgment  thereon  cannot  be  executed  against 
property  non-liable  for  debts  created  by  contract.^ 

Exemption  from  liability  as  well  as  debt  would  include  that 
from  torts  as  well  as  from  contracts.' 

Judgment  in  an  action  for  slander  may  be  executed  against 
a  homestead  which  is  protected  from  "  any  debt  growing  out 
of,  or  founded  upon,  any  contract  express  or  implied."  *  But 
under  a  statute  exempting  from  "  debts  contracted  "  and  an- 
other requiring  the  wife's  signature  to  any  alienation  of  home- 
stead by  her  husband,  it  was  held  that  a  judgment  on  such  an 
action  could  not  be  enforced  against  his  homestead.*  The 
court  confessedly  extended  the  terms  of  the  first  act,  saying : 
"  The  judgment  in  this  case  was  not  strictly  a  '  debt  con- 
tracted.' "  It  was  unqualifiedly  not  such.  Construed  with 
the  second  statute,  the  first  was  not  supplemented  so  as  legiti- 
mately to  make  the  judgment  a  "  debt  contracted,"  nor  to 
make  both  warrant  the  protection  of  the  homestead  from  exe- 
cution. The  court  said :  "  In  the  light  of  both  these  laws  this 
court  has  constantly  held  that  it  was  the  evident  intent  of  the 
legislature  to  protect  the  homestead  as  a  shelter  for  the  wife 
and  children,  independently  of  any  acts  of  the  husband.  He 
cannot  deprive  them  of  their  right  to  it  Avithout  the  consent 
of  the  wife,  either  by  his  contracts  or  his  torts." 

This  is  not  universally-received  doctrine  on  this  subject. 
Protection  from  contracts  is  not  protection  from  torts,  and 
restraint  of  alienation  does  not  make  it  so.  The  family  may 
need  protection  from  the  effect  of  the  wrongs  and  misdemean- 
ors done  by  its  head  as  well  as  from  his  ill-advised  contracts 
made  without  his  wife's  joinder ;  but  the  question  is,  not  what 
the  family  may  need,  but  what  has  the  legislator  enacted. 
That  upon  a  judgment  in  an  action  ex  delicto^  a  homestead 

1  Conroy  v.   Sullivan,  44  111.  451 ;  3  Smith  v.  Omans,  17  Wis.  395. 
Gill  V.  Edwards,  87  N.  C.  77 ;  Smith  «  State  v,  Melogue,  9  Ind.  196. 
V.  Oinans,  17  Wis.  395.  *  Conroy  v.  Sullivan,  44  IlL  451. 

2  Crane  v.  Waggoner,  27  Ind.  53. 


TOKT.  325 

cannot  be  sold  under  an  execution,  was  held  in  exposition  of  a 
constitutional  provision.^ 

Much  depends  upon  the  sense  in  which  the  word  "  debt " 
or  ''indebtedness"  is  used,  when  the  question  of  its  inclusion 
of  liability  for  tort  is  under  consideration.  It  has  been  de- 
cided that  the  contract  clause  of  the  federal  constitution  does 
not  protect  the  action  for  tort,  and  that  therefore  a  home, 
stead  is  exempt  from  execution  in  such  action  commenced  be- 
fore the  exemption  right  accrued  though  finished  by  judgment 
afterwards.  That  is  to  say,  the  debt  created  by  the  judgment 
did  not  relate  back  to  the  committal  of  the  tort  so  as  to  ante- 
date the  exemption  law  and  therefore  come  under  the  protec- 
tion of  the  constitution  inhibiting  the  impairing  of  contracts.^ 

It  seems  erroneous  to  say  that  the  relation  of  debtor  and 
creditor  exists  before  judgment  because  of  the  tort  and  the 
claim  for  damages ;  ^  but,  after  judgment  decreeing  damages 
in  a  certain  sum,  there  is  nothing  erroneous  in  the  application 
of  the  law  of  relation  to  the  debt  thus  created,  and  in  making 
it  affect  intermediate  sales,  when  the  purchaser  had  notice. 

If  the  tort-claim  is  not  a  debt  till  judgment,  it  is  then  a 
lien-bearing  debt,  though  there  is  no  specific  lien  upon  the 
homestead.  The  general  lien  requires  seizure  to  make  it  spe- 
cific on  the  property  seized. 

One  who  has  a  right  of  action  for  tort  is  not  a  creditor 
while  his  action  is  pending,  but  he  becomes  one  when  he  gets 
judgment  in  his  favor.  Does  not  such  judgment,  giving  dam- 
ages against  the  defendant,  retroact  by  the  law  of  relation  so 
as  to  strike  with  nullity,  or  with  voidable  character,  any  trans- 
fer of  real  property  by  him,  after  the  institution  of  the  suit 
for  the  purpose  of  defeating  the  execution  of  the  judgment? 
Such  a  transfer  has  been  so  far  disregarded  as  to  allow  the 
property  to  be  subjected  to  execution  under  the  tort  judg- 
ment.* 

A  sheriff  sold  land  under  execution,  treat'ng  the  defend- 
ant's claim  of  homestead  as  a  nullity.  The  sale  was  set  aside 
in  consequence,  though  the  record  showed  that  the  judgment 

1  The  N.  C.  Const,  of  1868 ;  Gill  v.  Const.  U.  S.,  art  1,  §  10 ;  Const  Tenn., 
Edwards,  87  N.  C.  77;  Bellinger  v.     art  1,  §  20;  art  11,  §  2. 

Tweed,  G6  N.  C.  206.  3  So  held  by  way  of  statute  exposi- 

2  Parker    v.   Savage,   6    Lea,   406 ;     tion.     Patrick  v.  Ford,  5  Sneed,  530. 

*  Langford  v.  Fly,  7  Humph.  585. 


326  LIABILITIES. 

was  for  tort  from  which  there  was  no  exemption.  The  ground 
of  invalidating  the  sale  was  that  the  cause  of  action  did  not 
appear  on  the  face  of  the  writ  or  in  the  journal  entry  of  the 
judgment.  It  was  not  for  the  sheriff  to  go  be3'ond  the  writ 
to  inquire  whether  the  judgment  was  for  debt  or  for  tort ;  for 
a  cause  of  action,  against  execution  of  a  judgment  upon  which 
the  plea  of  homestead  would  have  been  available,  or  for  a 
cause  to  which  exemption  has  no  reference.  Homestead  had 
been  pleaded:  so  the  clerk  should  have  issued  no  execution 
till  the  court  had  acted  on  the  plea.^ 

§  9.  Fiduciary  Debts. 

Liability  incurred  in  a  fiduciary  capacity  includes  that  of  a 
defaulting  tax  collector  (and  his  sureties,  it  is  held),  under  a 
constitutional  provision  for  homestead  which  excepts  debts 
created  in  such  capacity  from  exemption.^  The  provision  re- 
ferred to  is  that  "  every  householder  or  head  of  a  family  shall 
be  entitled  ...  to  hold  exempt  from  levy,  seizure,  gar- 
nisheeing,  or  sale  under  execution,  order  or  other  process 
.  .  .  real  and  personal  estate,  or  either  .  .  .  the  value 
not  exceeding  two  thousand  dollars,  to  be  selected  by  him," 
except  for  the  purchase  price  of  the  property ;  for  services  of 
a  laborer  or  mechanic;  "for  liabilities  incurred  by  any  public 
officer,  or  officer  of  a  court,  or  any  fiduciary,  or  any  attorney 
at  law,  for  money  collected ;""  for  a  lawful  claim  for  any 
taxes,  levies  or  assessments  ...  ;  "  "  for  rents  hereafter 
accruing ;  "  and  "  for  the  legal  or  taxable  fees  of  any  public 
officer  or  officers  of  a  court,  hereafter  accruing."  '  The  sure- 
ties' homestead  property  was  held  under  the  exception  em- 
bracing "  public  officers"  or  "other  fiduciary,"  though  the 
language  does  not  plainly  include  them.  The  court  said :  "  As 
soon  as  there  is  a  breach  of  the  condition  of  the  officer's  bond, 
he  and  his  sureties,  by  one  and  the  same  act,  besome  liable  to 
the  party  injured.  The  liability  incurred  by  the  officer  is  at 
the  same  time  incurred  by  the  surety."  Clearly ;  there  can 
be  no  doubt  of  the  surety's  liability ;  but  as  he  is  not  an  offi- 
cer, nor  a  fiduciary  of  any  sort,  is  his  homestead  liable  to  be 

1  McLaren  v.  Anderson  (Ala.),  8  So.  3  Const  Va.,  art.  11,  §  1 ;  Code  of 
188.  1873,  ch.  183. 

2  Commonwealth  v.  Ford,  29  Gratt. 
683. 


TAXES.  327 

procecdetl  against  by  "levy,  seizure,  sale  under  execution, 
order  or  other  process,  issued  on  any  demand,^''  etc.,  as  tho 
constitution  has  it?  Could  it  not  have  been  more  plausibly 
reached  under  the  clause  relative  to  "  lawful  claims  for  any 
taxes?  "1 

Where  debt  contracted  in  a  fiduciary  capacity  is  excepted 
from  exemption,  a  judgment  for  money  or  property  misap- 
propriated by  an  agent,  in  violation  of  his  trust,  may  be  en- 
forced against  his  homestead.^  A  tutor  for  a  minor,  indebted 
in  that  capacity,  cannot  claim  homestead  exemption  from  the 
debt.^  Such  debt  may  be  prosecuted  to  judgment,  and  execu- 
tion may  be  levied  upon  the  homestead  as  on  any  other  prop- 
erty, where  the  law  grants  no  exemption  as  to  such  liability.* 

A  homestead  assigned  the  debtor  in  bankruptcy  proceed- 
ings was  held  free  from  a  fiduciary  debt  which  had  not  been 
discharged  by  those  proceedings.* 

§  10.  Taxes. 

Taxes  are  usually  mentioned  among  the  obligations  not  af- 
fected by  homestead  exemption.  It  is  necessary  to  include 
them  among  the  other  exceptions  w^here  they  are  considered 
as  debts,  if  the  state  is  to  retain  its  remedy.  The  sovereign 
creditor  is,  like  any  other,  entitled  to  the  same  remedies,  and 
liable  to  the  same  obligations  in  many  respects.  It  is  bound 
b}?^  its  own  laws.  Its  rights  against  a  debtor  are  no  more 
sacred  than  those  of  any  other  creditor.  If  the  state  has  an 
ordinary  claim  against  him,  it  must  submit  to  the  same  cur- 
tailment of  remedy,  the  same  limitation  of  right  to  the  forced 
sale  of  his  property  that  it  has  imposed  upon  all  creditors.^ 

Different  terms  are  used,  in  different  state  statutes,  to  save 
the  tax-claim  from  the  effect  of  the  exemption  provision,  but 
they  are  all  meant  to  leave  the  remedy  for  the  collection  of 

^Com.  V.  Ford,  supra;  Homestead  other    person,    in    North    CaroUna. 

Cases,  32  Gratt.  266.  lb. ;  Lamb  v.  Chamness,  84  N.  C.  379 ; 

^Bridewell  v.  HaUiday,  37  La.  Ann.  Murphy  v,  McNeil,  82  N.  C.  221. 
410.  6  Loomis  v.  Gerson,  62  UL  13 ;  Green 

3  Piatt  V.  Sheriff,  41  La.  Ann.  856.  v.  United  States.  9  Wall.  655;  Fink 

*  Gilbert  V.  Neely,  35  Ark.  24,  with  v.  O'Neil,  106  U.  S.  272;  Common- 
reference  to  the  constitution  of  Ar-  wealth  v.  Lay,  12  Bush,  283 ;  Gunn 
kansas  of  1868.  v.  Barry.  15  Wall.  610;  State  v.  Pitts, 

5  Simpson  v.  Houston,  97  N.  C.  344.  51  Mo.  133,   CojH_pa?-e  Commonwealth 

And  the  exemption  follows  the  laud  v.  Cook,  8  Bush,  220;  Brooks  v.  The 

when  it  is  sold  by  the  debtor  to  an-  State,  54  Ga.  36. 


828 


LIABILITIES. 


taxes  untouched,  and  they  all  have  the  same  reason  underlying 
them.  The  reason  is  that  revenue  must  be  had  for  the  sup- 
port of  the  state,  the  county  or  the  municipality  laying  the 
assessment,  and  that  property  is  the  source  whence  such  rev- 
enue should  be  derived ;  and  that,  since  homesteads  are  pro- 
tected by  the  state  and  minor  governments,  they  should  bear 
their  proportion  of  the  burden,  since  there  is  no  danger  that 
a  tax,  which  is  never  more  than  a  small  percentage  of  the 
property  value,  need  ever  deprive  the  owner  of  his  home  and 
leave  his  family  shelterless. 

The  reason,  and  the  language  excepting  taxes  from  the 
operation  of  exemption,  is  virtually  the  same  in  all  the  states. 
The  tax,  bearing  a  lien  upon  the  property  taxed,  may  be  en- 
forced by  judgment  and  sale,  either  by  a  judicial  proceeding 
against  the  property  itself,  or  by  a  personal  suit  against  the 
delinquent  praying  for  judgment  against  him  simply,  or  for 
such  judgment  with  recognition  of  the  lien,  and  vindication  of 
it  by  the  sale  of  the  property  taxed.  In  a  proceeding  directly 
against  the  property  only,  seizure  and  notice  must  precede 
judgment,  and  the  writ  following  it  should  be  veoicUtioni  ex- 
ponas. In  a  personal  proceeding  simply,  no  seizure  precedes 
judgment,  and  the  writ  following  it  is  Jieri  facias.  These 
differences  cannot  affect  the  right  of  the  estate,  or  of  any  subor- 
dinate tax-collector,  to  collect  the  tax  by  forced  sale  of  the 
homestead. 

A  tax-sale,  a  sale  for  the  non-payment  of  taxes,  a  sale  on 
execution  issued  on  a  judgment  recovered  for  taxes,  are  all  the 
same  so  far  as  the  liability  of  homesteads  for  taxes  assessed 
upon  them  are  concerned.  They  are  usually  treated  as  equiv- 
alent expressions.  The  general  language  exempting  home- 
steads from  debts  does  not  include  tax  debts  when  any  one  of 
the  above  expressions  are  found  among  the  exceptions. 

A  different  view,  however,  has  prevailed  in  one  state.  Un- 
der the  statutory  provision:  "No  property  shall,  by  virtue  of 
this  act,  be  exempt  from  sale  for  the  non-payment  of  taxes  or 
assessments,"  it  has  been  held  that  "  A  sale  on  an  execution, 
although  issued  on  a  judgment  recovered  for  taxes,  is  not  a 
Bale  for  the  '  non-payment  of  taxes  '  in  the  ordinary  accepta- 
tion of  that  term.  A  '  tax-sale,'  or,  what  is  the  same  thing,  a 
'sale  for  the  non-payment  of  taxes,'  has  a  distinct  and  well 
defined  meaning.     It  means  a  sale  made  in  a  proceeding  in 


TAXES.  329 

rem,  and  was  so  generally  understood  when  the  homestead 
law  was  enacted ;  .  .  .  not  a  sale  on  an  execution  issued 
on  a  judgment  in  jpersonam,?''  ^ 

A  judicial  proceeding  in  rem^  with  notice  to  the  delinquent 
owner  of  the  property,  with  sale  following  judgment,  would 
certainly  be  within  the  ])rovision  quoted;  but  that  a  suit  iv 
personam,  followed  by  judgment  and  execution,  "  for  the  non- 
payment of  taxes,"  would  not  be  within  that  provision,  is  a  po- 
sition not  commending  itself  to  general  favor.  Even  in  the 
state  where  the  decision  was  rendered  from  which  the  above 
extract  is  taken,  this  position  was  not  so  well  established  at 
the  time  as  to  prevent  two  of  the  judges  from  dissenting 
both  to  the  reasoning  and  the  conclusion  of  the  opinion.  Else- 
where, this  position  seems  entitled  to  no  following.  The  in- 
tention of  the  legislator,  generally  speaking,  is  to  leave  the 
law  for  the  collection  of  taxes  unaffected  by  homestead  laws. 

Tax  on  homesteads,  as  well  as  upon  other  realty,  is  a  lien, 
generally  of  the  highest  rank,  susceptible  of  being  vindicated 
by  judicial  proceeding,  under  which  the  lien-bearing  thing  may 
be  subjected  to  forced  sale  so  that  the  purchaser  shall  have  a 
valid  title,  subject  to  redemption  where  the  statute  so  provides.- 

The  liability  of  homestead  property  for  taxes  does  not  differ 
from  that  of  any  other  property.'  The  state,  county,  or  city, 
as  the  case  may  be,  proceeds  against  it  as  though  there  w^ere 
no  exemption  law  in  existence.  There  is  none,  so  far  as  tax 
debt,  and  the  remedy  for  collecting  it,  are  concerned.  Home- 
steads are  not  exempt  from  taxes :  that  is  the  sense  of  all  the 
real-estate  exemption  laws  which  embrace  taxes  among  the 
exceptions. 

A  homestead  sold  under  execution  for  taxes,  where  exemp- 
tion does  not  apply  to  them,  is  conveyed  to  the  purchaser  free 
from  any  homestead  right  of  the  delinquent  tax-payer.* 

1  Douthett  V.  Winter,  108  111.  330 ;  v.  Sheppard,  80  Ga.  25 ;  Stokes  v. 
Douthettv.  Kettle,  104  III.  356;  Peo-  Georgia,  46  Ga.  412;  Colquitt  v. 
plev.  Stahl,  101  111.346;  Humes  v.  Brown,  03  Ga.  440;  Cooper  v.  Corbm, 
Gossett,  43  111.  299 ;  Connor  v,  Nich-  105  111.  224 ;  Binkert  v.  Wabash  R. 
ols,  31  111.  148;  Thornton  v.  Boyden,  Co.,  98  111.  206;  People  v.  Biggins,  96 
31  111.  200 ;  Smith  v.  Miller,  31  111.  157.  111.  481. 

2  Eaton's  Appeal,  83  Pa.  St.  152 ;  3  Lufkin  v.  Galveston,  58  Tex.  545. 
Lufkin  V.  Galveston,  58  Tex.  545;  S'ee  Galveston  v.  Heard,  54  Tex.  420. 
Shell  V.  Duncan,  31  S.  C.  547 ;  Lamar  ■»  Shell   v.   Duncan,   31   S.    C.    547. 


330 


LIABILITIES. 


Exemption  holds  good  against  claims  of  the  state  which 
have  not  been  excepted.  If  taxes  have  been  specially  reserved 
from  the  general  exclusion  of  claims  against  homesteads,  it  is 
fair  to  infer  that  the  legislator  did  not  mean  to  make  any 
other  state  claim  collectible  against  such  favored  property.^ 

When  taxes  have  been  excepted  from  the  operation  of  an 
exemption  law,  it  does  not  follow  that  the  state  may  execute 
a  judgment  against  a  defaulting  tax  collector's  homestead. 
The  suit  against  him,  for  money  collected  and  not  paid  over, 
is  not  a  suit  for  taxes  in  the  sense  in  which  the  phrase  is  used 
in  the  exemption  laws.  The  state,^having  deliberately  forbid- 
den forced  sales  of  homesteads  in  all  cases  but  the  expressly 
excepted  ones,  must  abide  by  its  own  statute.^  Its  rights 
must  be  determined  precisely  as  that  of  other  creditors  are 
ascertained :  by  reference  to  the  governing  law.  "Whether 
the  defaulting  tax  collector's  home  is  exempt  depends  upon 
what  latitude  may  be  given  properly  to  the  word  taja  or  taxes 
when  excepted. 

The  redemption  of  a  homestead  sold  for  taxes  may  be  by 
the  wife  of  the  beneficiary,  as  head  of  the  family,  when  he  is 
situated  so  that  he  cannot  act.  And  her  tender  of  the  tax 
money  and  Avhat  else  is  required,  within  the  time  allowed  for 
the  redemption,  is  sufficient.  The  purchaser  is  bound  to  give 
up  the  property.''  And  if  the  husband  is  so  situated  that  he 
can  act,  but  does  not,  why  may  not  she  tender  payment  and 
redeem  the  property? 


"  Under  the  law,  .  .  .  the  home- 
stead exemption  did  not  extend  to 
process  issued  to  enforce  the  pay- 
ment of  taxes  or  obHgations  con- 
tracted for  tlie  purchase  of  ...  a 
homestead,  '  provided  the  court  or 
authority  issuing  said  process  shall 
certify  thei'eon  that  tlie  same  is  is- 
sued for  some  one  or  more,  and  no 
other  of  said  purposes.'  "  Such  cer- 
tificate held  essential.  Burnside  v. 
Watkins,  30  S.  C.  459.  The  circuit 
judge  may  indorse  on  the  judgment, 
even  at  the  term  after  the  judgment 
W2&  rendered,  that  it  was  for  pur- 


chase-money, though  the  fact  may 
not  have  been  pleaded.  Green  v. 
Spann,  25  S.  C.  273. 

1  Colquitt  V.  Brown,  63  Ga.  440. 

2  Ren  V.  Driskell,  11  Lea,  643. 

3  Lamar  v.  Sheppard,  80  Ga.  25 ; 
Adams  v.  Beale,  19  la.  06.  In  North 
Carolina  a  widow,  as  tenant-for-life 
of  her  homestead,  may  forfeit  her 
title  by  suffering  the  property  to  be 
sold  for  taxes,  and  failing  to  redeem 
within  a  year.  Tucker  v.  Tucker, 
108  N.  C.  235.  See  Jones  v.  Britton, 
102  N.  C.  166 ;  Ex  parte  Macay,  84 
N.  C.  63. 


CHAPTER  XL 


LIABILITY  FOR  PURCHASE-MONEY  AND  IMPROVEMENTS. 


1.  Exemption  Inapplicable. 

2.  When  no  Lien  is  Recognized. 

3.  Money    Borrowed    to    Pay   the 

Price  —  Subrogation. 

4.  Borrowed  and  Purchase-money 

Distinguished. 

5.  Notes  for  Price  in  Third  Hands. 

6.  Marshaling     Accounts,    as    to 

Homestead. 


§  7.  Mortgage  for  the  Price. 

8.  Payment    Essential  to    Owner- 

ship. 

9.  Price     Returned    when     Title 

Fails. 

10.  Insurance  and  Voidable  Title. 

11.  Improvements. 


§  1.  Exemption  Inapplicable. 

Purchase-money  is  the  equivalent  for  the  thing  bought.  It 
is  a  term  employed  in  homestead  laws  to  express  the  debt 
owing  by  the  purchaser  for  his  homestead.  It  is  the  unpaid 
price  of  the  land.  It  is  the  consideration  or  essence  of  the 
contract  of  purchase  while  the  land  is  the  object.  The  price 
and  the  object  are  presumed  to  be  equal ;  the  contract  is  mut- 
ually fair  between  the  parties;  the  scales  of  justice  are  in 
equipoise. 

Manifestly,  the  purchaser  cannot  have  both  the  thing  bought 
and  the  price ;  cannot  have  both  while  the  seller  has  nothing. 
Just  as  consistently  might  the  seller  take  the  purchase-money 
and  retain  the  thing  for  which  it  was  given.  Such  injustice 
cannot  be  tolerated  in  favor  of  either  party  by  any  round- 
about maneuvre,  any  indirect  method,  any  ingenious  construc- 
tion of  contract,  any  countenance  of  dishonest  dealing  on  the 
plea  of  liberality  or  humanity  to  the  purchaser  and  his  fani- 

iiy. 

There  is  no  constitutional  authority  in  the  state  to  take  from 
one  citizen  and  give  to  another,  leaving  the  bereft  party  with- 
out any  quid  jpro  quo.  Neither  the  state  nor  the  nation  can 
take  private  property,  even  for  public  use,  without  "adequate 
compensation."  To  deny  a  vendor  the  price  of  his  property 
is  the  same  as  to  take  the  property  itself  for  the  private  use 
of  another  person  who  renders  no  equivalent. 


332  LIABILITY    FOE    PURCHASE-MONEY,  ETC. 

The  stcite  can  no  more  do  this  by  homestead  kiws  than  by 
any  other  means ;  cannot  do  it  indirectly  any  more  than  di- 
rectly. So,  were  those  laws  all  silent  on  the  subject  of  pur- 
chase-money, the  stipulated  price  of  the  homestead  would  yet 
be  a  debt  susceptible  of  prosecution  to  judgment,  and  the 
judgment  could  be  executed  upon  the  land.  Even  in  the  ab- 
sence of  any  vendor's  lien,  such  judgment  could  be  executed 
upon  the  land,  though  the  plaintiff  might  be  obliged  by  law 
first  to  exhaust  other  property. 

The  homestead  statutes  are  not  silent,  however,  on  this 
subject,  but  they  expressly  except  debt  for  purcliase-money 
from  those  affected  by  exemption  provisions.  All  but  one  or 
two  make  the  exception  declaratively,  and  that  one  or  two  do 
it  impliedly.  They  do  not  all  employ  the  same  terms.  From 
the  narrow  restriction  of  the  non-exempt  debts  for  purchase- 
money  to  those  evidenced  by  act  of  mortgage,  to  the  broad 
provisions  which  include  money  borrowed  to  pay  the  price, 
there  is  much  included  variety.  These  extremes,  with  the  in- 
termediate provisions  of  more  moderate  tenor,  each  subjected 
to  a  crucible  of  construction  different  from  those  wliich  try  the 
rest,  present  to  the  profession  a  variegated  landscape  which 
must  now  be  particularly  explored  after  the  judicial  guides 
who  have  gone  before. 

Whatever  the  differences  statutory'-  and  constructive,  uni- 
formity remains  respecting  the  proposition  that  the  purchaser 
of  property  for  a  homestead,  or  any  other  purpose,  cannot 
have  the  land  and  repudiate  the  price,  by  means  of  any  statu- 
tory or  constitutional  provision ;  that  he  can  have  no  exemp- 
tion from  the  debt  incurred  by  his  contract  of  purchase ;  that 
he  cannot  retain  both  the  object  and  the  consideration  of  the 
contract;  that,  according  to  the  homely,  nursery  aphorism 
(worthy  to  be  received  as  a  legal  maxim),  he  "  can't  have  the 
pudding  and  eat  it  too." 

The  general  rule,  with  little  exception,  is  that  homesteads 
are  liable  for  their  purchase-price,  and  that  there  is  no  exemp- 
tion from  such  a  debt.  Equity  creates  a  lien  upon  such  prop- 
erty in  favor  of  the  vendor,  even  when  there  is  no  conventional 
creation  of  it.  The  debt  is  a  property  debt,  and  a  judgment 
upon  it  may  be  enforced  against  the  indebted  thing,  when  a 
homestead,  as  readily  as  against  any  other  property  fictitously 


WHEN    NO    LIEN    IS    KKCOGNIZED.  333 

indebted.  The  general  liability  of  homesteads,  for  unpaid  pur- 
chase-money, is  well  established.' 

The  nature  and  scope  of  this  lien  are  clearly  stated  by  the 
late  Judge  West,  as  follows :  "  Without  any  contract  or  agree- 
ment, by  operation  of  law  this  lien  springs  at  once  out  of  the 
contract  of  purchase,  and  exists  and  survives  until  waived,  or 
extinguished  by  payment,  as  between  the  original  parties  to  the 
notes,  wholly  independent  of  any  agreement,  verbal  or  writ- 
ten. Hence  the  averment  in  the  petition  in  this  case  as  to  the 
existence  of  the  vendor's  lien,  though  not  as  full  as  it  should 
have  been,  was  sufficient."  - 

The  vendor's  privilege  remains  intact,  though  the  property 
he  has  sold  may  have  passed  subsequently  through  successive 
hands,  and  the  last  holder  may  have  paid  the  price  to  his  im- 
mediate grantor  and  claimed  homestead  in  the  property.^ 

Purchase-money  may  be  collected  from  the  homestead, 
however  often  the  evidence  of  the  debt  may  have  been 
changed,  if  it  can  yet  be  traced.  The  lien  which  attends  the 
claim  continues  good  against  the  homestead.^ 

§  2.  When  no  Lien  is  Recognized. 

Several  states  allow  no  exemption  from  any  obligation 
whatever  which  is  incurred  in  the  purchase  of  property  for  a 
homestead.  Such  debt  can  be  prosecuted  to  judgment,  and 
the  judgment  executed  against  the  homestead,  though  there 
be  no  recognized  vendor's  lien  expressed  or  implied,  in  law  or 
equity,  and  the  householder's  obligation  for  the  purchase- 
money  be  merely  personal. 

Though  a  note  or  bond  given  for  land  create  no  lien,  yet 

1  Toras  V.  Fite,  93  N.  C.  274 ;  Toms  Curtis,    79    Ky.    327 ;     Williams    v. 

V.  Logan,  93  N.  C.  276 ;  Fox  v.  Brooks,  Young,    17    Cal.    403 ;     Skinner    v. 

88  N.  C.  234;   Darliam  v.  Bostick,  72  Beatty.  16  Cal.  157. 

N.  C.  357 ;  Tunstall  v.  Jones,  25  Ark.  2  Joiner   v.   Perkins,  59    Tex.  300, 

214;  Williams  v.  Jones,  100  111.  362;  citing  Flanagan  v.  Cushman,  48  Tex. 

Palmer  v.  Simpson,  69  Ga.  792 ;  Mc-  244 ;    Rogers   v.    Blum,   56    Tex.    1 ; 

Daniel  v.  Westberry.   74    Ga,    380;  Briscoe    v.   Bronaugh,    1   '::'ex.   326; 

Christy  t.  Dyer,  14  la.  438 ;  Cole  v.  Hood  v.  Cordova,  17  Wall.  1 ;  White 

Gill,  14  la.  527 ;  Burnap  v.  Cook,  16  la.  v.  Downs,  40  Tex.  225. 

149;  Hyatt  v.  Spearman,  20  la.  510;  3  Sparger  v.  Cumpton,  54  Ga.  355; 

Bills  V.  Mason,  42  la.  329 ;  Campbell  Greenway  v.  Goss,  55  Ga.  588 ;  Mc- 

V.   Maginnis,  70  la.  589 ;  Patrick   v.  Daniel  v.  Westberry,  74  Ga.  380. 

Rembert,   55  Miss.    87 ;    Bradley  v.  <  Bradley  v.  Curtis,  79  Ky.  327. 


334:  LIABILITY    FOR   PDECHASE-MONEY,  ETC. 

"  obligcations  contracted  for  the  purchase  of  a  homestead " 
are  excepted  from  those  which  cannot  be  enforced  against  it. 
Such  note  or  bond  prosecuted  to  judgment  may  be  collected 
under  execution.'  Judge  Ashe,  in  delivering  the  court's  opin- 
ion, after  recognizing  the  principle  above  stated,  and  after 
saying  that  it  is  settled  in  his  state  that  the  vendor  of  real 
estate  who  has  conveyed  it  by  deed  has  no  lien  upon  the  land 
for  the  purchase-money,-  interprets  the  constitutional  provision 
that  "  no  property  shall  be  exempt  from  sale  for  taxes  or  for 
payment  of  obligations  contracted  for  the  purchase  of  said  prem- 
ises," *  so  as  to  make  it  read  as  follows :  "  No  property  shall 
be  exempt  from  sale  for  taxes  or  from  execution  for  payment 
of  obligations  contracted  for  the  purchase  of  said  premises." 
He  adds :  "  This  gives  no  lien  to  the  holder  of  the  note  for  the 
purchase-money,  but  its  plain  and  evident  meaning  is  that  if 
such  holder  shall  obtain  a  judgment  on  the  instrument  and 
issue  his  execution  against  the  vendee,  his  (the  vendee's)  right 
to  a  homestead  in  the  land  purchased  by  him  shall  not  be  an 
impediment  to  the  sale  of  the  land  under  the  execution."  * 

If  the  vendee  indorses  notes  which  he  holds  from  a  third 
person  and  passes  them  to  the  vendor  of  his  homestead,  his 
position  is  as  though  he  had  given  his  own  notes  to  secure 
the  purchase-money,  and  the  homestead  is  not  exempt  from 
that  debt  — for  the  case  is  not  as  though  the  vendor  had  ac- 
cepted the  notes  as  payment,  without  indorsement.^  And 
the  same  learned  judge,  speaking  for  the  court  in  another 
case,  says  that  the  term  "  obligation  "  in  the  above  quotation 
from  the  constitution,  "  is  not  used  in  its  technical  sense,  but 
embraces  every  contract  to  pay  for  the  land,  whether  hy  spe- 
cialty or  parol'  but  the  contract,  we  are  of  the  opinion,  must 
be  made  with  the  bargainor  and  the  consideration  must  be  the 
price  of  the  land  purchased."  So  it  was  held  that  one  who 
has  not  discharged  his  obligation  to  pay  for  land  is  not  enti- 
tled to  homestead  in  it  against  a  judgment  on  his  contract; 
and  that  if  the  bargainee  agreed  with  the  bargainor  to  pay  a 

1  Smith  V.  Higli,  85  N.  C.  93.  Jones'  Eq.  9 ;  Hoskins  v.  Wall,  77  N. 

2  Citing  Womble  v.  Battle,  3  Ired.     C.  249. 

Eq.  182 ;  Cameron  v.  Mason,  7  Ired.        3  Const  N.  C„  art  10,  §  2. 
Eq.    180 ;     Simmons    v.    Spruill,    3        *  Smith  v.  High,  supra. 

5  Whitaker  v.  Elliott,  73  N.  C.  186. 


WHEN    NO    LIEN    IS    RECOGNIZED.  335 

note  wliicli  the  latter  owed  to  a  third  person,  in  considera- 
tion of  the  kind  purchased,  the  land  is  liable  for  the  payment 
of  the  debt.^ 

Of  the  vendor's  lien  for  purchase-money,  and  the  enforce- 
ment of  the  debt  without  it  by  ordinary  judgment  and  exe- 
cution, it  is  judicially  said:  "It  is  insisted  by  defendants  in 
error  that,  as  plaintiff  in  error  is  not  entitled  to  the  vendor's 
lien,  he  cannot  enforce  the  payment  of  the  debt  as  purchase- 
money.  The  statute  exem])ting  the  homestead  from  forced 
sale  for  the  payment  of  debts  contains  this  exception :  '  No 
propertv  shall  by  virtue  of  this  act  be  exempt  from  sale  for 
the  non-payment  of  taxes  or  assessments,  or  for  a  debt  or  lia- 
bility incurred  for  the  purchase  or  improvement  thereof.' 

"  The  exemption  and  exception  from  its  operation  are  parts 
of  the  same  statute,  and  must  be  read  together  as  one  act; 
and  as  to  the  excepted  cases  it  is  as  if  there  were  no  exemp- 
tion. If  the  only  purpose  of  this  exception  to  the  statute 
was  to  ]n'eserve  the  vendor's  lien,  it  is  difficult  to  see  why  it 
should  have  been  inserted,  as  it  would  give  to  the  vendor  no 
additional  security,  and  would  add  nothing  to  his  rights. 

"  A  vendors  lien  is  a  mere  creature  of  the  courts  of  equity, 
and  not  cognizable  in  courts  of  law.  It  is  in  the  nature  of  a 
trust,  equity  regarding  the  purchaser  as  holding  the  estate 
for  the  payment  of  the  purchase-money  upon  the  principle 
that  one  who  has  gotten  the  estate  of  another  ought  not,  in 
conscience,  to  be  allowed  to  retain  it  and  not  pay  the  consid- 
eration money. 

"  This  lien  ...  in  this  state  cannot  be  transferred  by 
assignment  to  the  assignee  of  the  note  given  for  the  purchase- 
money.     .     .     . 

"  That  the  demand,  here  sought  to  be  enforced,  was  a  lia- 
bility incurred  for  the  purchase  of  the  premises,  cannot  be 
questioned.  It  is  the  common  understanding  of  the  term, 
purchase-money,  that  it  means  money  paid  for  the  land,  or  the 
debts  created  by  the  purchase.  In  using  the  language,  '  debt 
or  liability  incurred  in  the  purchase,'  it  was  not  intended  to 
restrict  the  operation  of  the  exception  to  cases  only  where 
the  party  held  a  vendor's  lien. 

1  Fox  V.  Brooks,  88  N.  C.  234. 


336  LIABILITY    FOR    PUKCHASE-MONEY,  ETC. 

"  It  is  true  that  authorities  may  be  found,  to  sustain  the 
position  of  defendants  in  error,  in  some  of  the  states;  but 
they  are  based  upon  constitutional  or  statutory  provisions 
widely  different  from  our  own.  In  some  there  are  no  excep- 
tions to  the  exemption,  and  in  others  the  vendor's  lien  is  ex- 
cepted in  express  terms."  ^ 

It  is  not  strictly  true  that  there  is  any  state  in  which  there 
is  no  exception  to  exemption ;  but  the  court  probably  meant 
that  in  some  of  them  the  exceptions  are  not  expressly  named. 

Again  it  is  said,  in  the  same  state,  respecting  the  character 
of  debt  for  a  homestead :  "  The  sole  question  presented  in  this 
case  is  whether  the  debt  in  question  is  a  debt  '  incurred  for 
the  purchase '  of  the  premises  in  which  defendants  in  error 
claim  an  estate  of  homestead.  We  cannot  doubt  that  it  is. 
The  land  was  sold  by  Gray  to  Jones.  For  a  part  of  the  pur- 
chase-price Jones  gave  his  notes,  payable  to  the  vendor,  with 
Beale  as  security.  The  notes  Avere  sold  and  assigned  by  the 
payee  to  Williams.  Williams  afterwards,  by  an  arrangement 
with  Jones,  surrendered  these  notes  to  him,  and  took  from 
him,  in  lieu  thereof,  and  as  security  for  the  same  debt,  the 
note  of  Jones  alone,  and  a  trust  deed  upon  the  land  so  bought, 
to  secure  the  payment  thereof. 

"  The  statute  as  to  homestead  exemption  provides  that  '  no 
property  shall,  by  virtue  of  this  act,  be  exempt  from  sale  .  .  . 
for  a  debt  or  liability  incurred  for  the  purchase  or  improve- 
ment thereof.'  This  debt  is  admitted  to  be  the  same  debt  as 
that  for  which  the  original  notes  were  given,  and  it  is  agreed 
that  the  first  notes  were  given  for  purchase-money.  It  falls 
clearly  within  the  express  words  of  the  statute.     .     .     . 

•'  There  is  no  ground  for  saying  the  limitation  in  the  statute 
was  intended  merely  to  protect  the  vendor's  lien.  It  is  not  so 
limited  by  its  words.     .     .     . 

"■  The  plaintiff  in  error  represents  or  stands  in  the  place  of 
tlie  vendor,  as  the  owner  of  the  debt  for  the  purchase  of  the 
])roperty.  Without  reviewing  in  detail  the  cases  referred  to 
by  the  counsel,  we  merely  say  we  find  nothing  in  former  de- 

1  Kimble  v.  Esworthy,  6  Bradw.  51  III.  500,  and  Bush  v.  Scott  76  111, 
(III.)  517 ;  approving  Austin  v.  Un-  534 ;  and  holding  inapplicable,  Phelps 
derwood,  37  111.  438 ;  Magee  v.  Magee,    v.  Conover,  25  111.  272, 


MONEY  BOEROWED  TO  PAY  THE  PKICE SUBROGATION.   337 


oisions  of  this  court  at  all  incompatible  with  the  views  herein 
expressed."  ^ 

§3.  Money  Borrowed  to  Pay  the  Price  —  Subrogation. 

Money  borrowed  of  a  third  person  by  the  vendee  of  a  home- 
stead, and  paid  to  the  vendor,  is  purchase-money  for  which 
the  purchased  property  is  liable  to  such  third  person,  under 
the  broad  application  of  the  tQvva.  purchase-money  in  many  of 
the  homestead  statutes.^ 

Since  borrowed  money,  paid  for  homestead  property,  is 
treated  as  purchase-price,  the  creditor  has  his  lien  on  the  prop- 
erty bought;  or,  where  he  has  not,  he  may  obtain  a  lien- 
bearing  judgment.^  The  homestead  is  liable  for  money  bor- 
rowed to  pay  a  balance  due  on  the  purchase-price.* 


1  Williams  v.  Jones,  100  111.  362; 
distinguishing  Eyster  v.  Hathaway, 
50  III  522. 

2  Allen  V.  Hawley,  66  111.  164;  Ma- 
gee  V.  Magee,  51  111.  500 ;  Austin  v. 
Underwood,  37  111.  438 ;  Silsbe  v.  Lu- 
cas, 36  111.  462 ;  Lassen  v.  Vance,  8 
Cal.  271 ;  CaiT  v.  Caldwell.  10  Cal. 
385;  Ham  rick  v.  Peoples'  Bank,  54 
Ga,  502;  Nichols  v.  Overacher,  16 
Kan.  54 ;  Pinchain  v.  CoUard,  13  Tex. 
333. 

3  Bugg  V.  Russell,  75  Ga.  837.  Chief 
Justice  Jackson,  for  the  court,  says : 
"  While  homestead  rights  are  consti- 
tutional and  favorites  of  our  law, 
fraud  is  not;  and  to  permit  Bugg  to 
perpetrate  such  a  fraud  as  to  make  a 
homestead  out  of  the  money  which 
he  begged  Russell  to  lend,  without 
paying  a  dollar  of  it  back  to  him, 
would  be  to  sink  law  and  equity  into 
a  slough  of  iniquity  and  putridity 
nauseating  to  every  sense  of  moral 
purity.  The  court  was  right  to  make 
him  pay  the  debt."  Notwithstand- 
ing the  usuriousness  of  the  interest 
stipulated,  the  creditor  was  allowed 
to  recover,  and  homestead  exemption 
not  allowed  to  favor  fraud.  The 
court,  evidently  with  righteous  indig- 
nation, said  of  Bugg :  "'  Shall  he  not 


pay  the  man  whose  money  got  him 
the  homestead  right  out  of  the  prop- 
erty, before  he  asserts  and  sets  apart 
that  right  paid  for  by  Russell  ?  Jus- 
tice, equity,  law,  common  sense,  all 
demand  that  he  shall;  and  Russell 
was  not  far  wrong  when  he  said  that 
he  would  not  pay  him  two  dollars 
and  a  half  for  his  homestead.  The 
sense  of  right  in  the  heart  of  an  hon- 
est man,  when  a  swindler  would 
cheat  him,  nine  times  out  of  ten,  is 
the  law  of  the  land.  Not  a  cent  of 
usury  went  into  the  money  which 
paid  for  the  land;  this  $1,125  is  free 
from  it;  it  bought  for  Bugg  and 
Bugg  must  pay  for  it  Inasmuch  as 
such  must  be  the  result  of  this  in  a 
hundred  trials,  it  is  needless  to  con- 
sider allegations  of  error  on  minor 
points.  It  is  well,  however,  to  add 
that  the  case  is  distinguishable  from 
Anderson  v.  Tribble,  63  Ga.  32  and  66 
Ga.  584.  There  the  title  was  in  Trib- 
ble, and  never  had  been  in  another, 
out  of  whom  Anderson's  money,  and 
his  money  alone,  put  it  in  Tribble, 
If  there  be  obiter  in  that  case,  or 
loose  expressions  which  are  at  all  at 
issue  with  the  ruling  now  made,  we 
cannot  see  their  equity." 
i  White  v.  Wheelan,  71  Ga.  533. 


338  LIABILITY    FOR    PURCHASE-MOWEY,  ETC. 

"  Whatever  may  bo  the  decision  of  other  states  of  the  Union 
as  to  the  liability  of  property  set  apart  as  a  homestead  for  the 
debts  of  the  person  interested  in  the  homestead,"  said  the 
court  in  deciding  the  above  cited  case,  "  the  law  is  settled  by 
the  repeated  rulings  and  decisions  of  this  court  in  this  state, 
that  the  property  is  liable  for  the  purchase-money  loaned  to 
extinguish  an  incumbrance  on  the  homestead,  although  this 
incumbrance  may  only  be  the  unpaid  purchase-money  for  the 
property  set  apart  for  the  homestead."  ^ 

The  lender  of  the  money,  in  this  case,  held  no  mortgage  or 
conventional  lien  of  any  kind.  He  loaned  the  homestead 
holder  two  hundred  dollars  for  the  payment  of  a  balance  due 
upon  his  purchase  of  the  homestead.  He  took  merely  a  prom- 
issory note  for  the  loan,  but  proved  the  purpose,  and  recov- 
ered. The  homestead  holder,  with  that  money,  had  taken  up 
his  last  remaining  note  from  his  vendor;  and  the  money  bor- 
rowed for  the  purpose  was  "  purchase-money "  within  the 
statute  and  the  decisions. 

It  is  held  that  a  homestead,  set  apart  before  purchase-money 
was  made  collectible  from  such  property,  does  not  become 
liable  by  the  passage  of  an  act  rendering  homesteads  liable, 
so  far  as  an  antecedent  debt  of  the  owner  for  such  money  is 
concerned.^  Not  as  an  antecedent  debt ;  but  certainly  it  would 
be  liable  under  the  vendor's  lien,  if  that  bore  upon  the  pro[,- 
erty  when  the  homestead  was  created.  The  legislature,  by 
providing  that  homesteads  shall  be  liable,  does  not  imply 
that  liens  prior  to  the  declaration  of  liability  shall  be  dis- 
lode-ed.  The  vested  rig-ht  of  the  lien-holder  cannot  thus  be 
divested.  And  the  court,  holding  as  above  stated,  should  not 
be  understood  to  teach  that  vested  rights  can  be  divested 
either  by  implication  or  express  enactment. 

A  resulting  trustee  has  no  protected  homestead,  when  he 
has  bought  it  with  borrowed  money,  against  the  lender.  A 
grantee,  holding  for  another  person,  acquires  no  right  from 
the  resulting  trust.  His  position  is  that  of  a  purchaser  hold- 
ing nominal  title  but  mortgaging  the  property  purchased  to 
secure  the  promised  price.^ 

^  lb.;  Middlebrooks  v.  Warren,  59  Lathrop  v.  Association,  45  Ga.  483; 

Ga.  232 ;  Sale   v.  Wingfield,   55  Ga.  Kelly  v.  Stephens,  39  Ga.  466. 

622 ;  Wofford  v.  Gaines,  53  Ga.  485  ;  2  Hawks  v.  Hawks,  64  Ga.  239. 

Hawks  V.  Hawks,   46  Ga.  204,  207;  » Shepherd  v.  White,  11  Tex.  354; 


MOMEY    I>()KK()\VKI)    TO    I'A^     TilK     I'lJICK SUBR<  lOATION.       'A'-'Ai 

When  the  legal  title  is  given  to  the  husband,  any  allegation 
that  the  money  was  advanced  by  others  in  behalf  of  the  wife 
must  be  duly  established  to  create  a  resulting  trust  in  her 
favor,  as  against  the  creditors  of  her  husband.' 

Of  course,  like  any  other  allegation,  it  )nust  be  proved,  but 
the  presumption  would  be  so  strong  against  the  creation  of 
such  trust  that  it  would  seem  to  require  something  more  than 
the  testimony  of  the  husband  and  wife  to  establish  the  fact, 
in  the  face  of  the  title,  and  against  the  interests  of  the  creditors. 

An  alien,  tracing  his  money  to  its  investment  by  another  in 
a  tract  of  land,  would  seem  entitled  to  a  money  judgment 
against  the  investor,  and  a  lien  on  the  land  susceptible  of  fore- 
closure, though  no  resulting  trust  in  it  would  be  raised  in  his 
favor.  If  such  funds  are  employed  by  a  husband,  comple- 
mented by  his  wife's  money,  to  buy  a  homestead,  a  lien  for 
purchase-money  is  not  thus  created,^ 

It  is  right  that,  without  any  express  subrogation,  the  lender 
of  the  purchase-money  has,  and  ought  to  have,  his  law-created 
recourse  against  the  homestead  bought  with  it.  Those  who 
deny  this  rest  upon  the  consideration  that  he  is  not  the  holder 
of  the  vendor's  lien  (which  is  true);  and  that,  though  the  de- 
nial of  his  right  would  be  unjust  to  him,  the  homestead  laws 
do  not  purport  to  be  founded  upon  justice  to  creditors  (which 
is  untrue,  since  exemption  affects  only  those  who  have  given 
credit  after  notice).' 

A  homestead  was  abandoned  and  another  acquired.  The 
beneficiary's  notes  for  the  first  property  were  out,  but  he  sold 
it.  An  agreement  was  made  between  the  three  parties :  him- 
self, his  vendee  and  the  holder  of  the  notes,  by  which  his 
vendee  agreed  to  take  up  the  notes,  and  give  his  own  with 
lien  on  the  land  he  had  purchased,  which  had  been  the  orig- 

Re  Wliitehead,  3  N.  B.  R.  599 ;  New  Skaggs  v.  Nelson,  25  Miss.  88 ;  Zun- 

England,  etc.  Co.  V.  Merriam,  3  Allen,  dell  v.  Gess,   73  Tex.  144;  Wynn  v. 

390.  Flannigan.   25  Tex.  781 :  Malone  v. 

iShelton  v.   Aultman.  82  Ala.  315;  Kaufman,   38  Tex.  454;  Notte's  Ap- 

McCail  V.   Rogers,  77  Ala.   349;  Mo.  peal,  45  Pa.  St.  361;  Bugg  v.  Russell, 

Life  Ins.  Co.  v.  Randall.  71  Ala.  220 ;  75  Ga.  837 :  Eyster  v.  Hathaway,  50 

Tilford  V.  Torrey,  53  Ala.  120.  111.  521 ;  Buruap  v.  Cook,  16  la.  149; 

2  Zundell  v.  Gess,  73  Tex.  144.  Bentley  v.  Jordan,  3  Lea,  353 ;   Lear 

*  Williams  v.  Jones,  100  111.  362 ;  v.  Heffner,  28  La.  Ann.  829. 

Stansell   v.   Roberts,    13    Ohio,   148; 


34:0  LIABILITY     KOR    PL'RCII ASK-MON KV,   ETC. 

inal  homestead  above  mentioned.  He  gave  the  new  notes. 
It  was  held  that  equity  will  enforce  the  intention  to  secure 
the  notes  by  lien,  and  that  there  was  no  homestead  in  the 
way.* 

The  lender  of  money  to  pay  the  purchase-price  of  a  home- 
stead, who  takes  a  deed  of  trust  on  the  land,  has  the  riglit  of 
being  subrogated  to  the  vendor's  lien ;  but  if  he  takes  a  chat- 
tel mortgage,  the  rule  is  otherwise.^  Of  course,  subrogation 
may  be  created,  in  the  latter  case,  by  agreement.' 

One  who  loans  money  to  enable  another  to  purchase  a 
homestead,  and  who  becomes  subrogated  to  the  rights  of  the 
vendor  against  the  land,  cannot  be  defeated  in  collecting  it  by 
the  claim  of  homestead  immunity  on  the  part  of  the  borrower,* 

The  court  said,  in  the  first  case  just  cited :  "  The  transaction 
.  .  .  may  be  regarded  as  if  the  appellants  had  furnished 
the  means  of  paying  the  purchase-money  of  the  land  upon  an 
agreement  that  they  were  to  have  the  same  remedies  to  re- 
cover the  money  thus  provided  that  the  original  vendor  pos- 
sessed to  enforce  his  demand. 

"So  well  is  it  established  in  our  own  state  by  frequent  de- 
cisions that  the  effect  of  such  a  transaction  is  to  subrogate  the 
parties  who  have  purchased  the  claim  against  the  vendee,  or 
have  furnished  him  the  means  to  pay  the  debt  due  the  vendor, 
to  all  the  rights  and  remedies  and  liens  previously  held  by  the 
latter  to  enforce  his  debt,  that  there  will  be  no  necessity  to 
strengthen  the  principle  by  argument,  but  we  merely  refer  to 
authorities  to  sustain  it."  ^ 

The  lender  who  takes  a  mortgage  to  secure  his  advances 
which  the  purchaser  pays  to  his  vendor,  whether  those  ad- 
vances be  in  money  or  goods,  is  held  to  have  the  same  rights 
as  the  vendor  himself  would  have,  were  the  mortgage  given, 
directly  to  him.^ 

1  Thorn  v.  Dill,  56  Tex.  145.  57  Tex.  518 ;  Flanigan  v.  Cushman, 

2Pridgpn  v.  Warn,  79  Tex,  588;  15  48  Tex.  244;  Cannon  v.  McDauiel,  46 

8.  W,  559;  Hicks  V,  Morris,  57  Tex,  658.  Tex.   304.     See  Denni  v.  Elliott,  60 

3  Fievel  v.  Zuber,  67  Tex.  275.  Tex.  337  (deed  of  trust  to  lender). 

*  Warhmund  v.  Merritt,  60  Tex.  24 ;  5  Warhmund  v.  Merritt,  60  Tex,  24. 
Eylar  v,  Eylar,  60  Tex.  315 ;  Joiner        6  Austin  v.  Underwood,  87  III  438 ; 

V,  Perkins,  59  Tex.  300 ;    Dillon    v.  Eylar  v,  Eylar,  60  Tex,  315 ;  Pridgen 

Kauffrnan,  58  Tex.  696 ;  Hicks  v,  Mor-  v.  Warn  (Tex.),  15  S.  W,  559 ;  Lassen 

ris,  57  Tex,  658 ;  Wright  v.  Heffner,  v.  Vance,  8  Cal.  271 ;  Clark  v.  Man- 


lioKKOWEU    AND    I'L  KClIAtSIi-MC^NEV    DlSTIXCiUISlIED.  ;>41 

Money  advanced  to  ])urchase  supplies  for  making  a  crop 
has  been  regarded  in  the  nature  of  purchase-money  and  there- 
fore ground  for  good  claim  against  the  homestead.' 

§  4.  Borrowed  and  Purchase-money  Distinguished. 

"A  homestead  in  possession  of  each  head  of  a  family,  and 
the  improvements  thereon,  to  the  value  in  all  of  one  thousand 
dollars,  shall  be  exempt  from  sale  under  any  legal  process 
during  the  life  of  such  head  of  a  family,  to  inure  to  the  ben- 
efit of  the  widow,  and  shall  be  exempt  during  the  minority  of 
their  children  occupying  the  same.  This  exemption  shall  not 
operate  against  public  taxes,  nor  debts  contracted  for  the  pur- 
chase-money of  such  homestead,  or  improvements  thereon."' 

The  statute,  to  effectuate  this  article,  provides  "  such  estate 
shall  not  be  exempt  from  sale  for  the  payment  of  public  taxes 
legally  assessed  upon  it,  or  from  sale  for  the  satisfaction  of  any 
debt  or  liah'dity  contracted  for  its  purchase,  or  legally  incurred 
for  improvements  thereon." ' 

Moore  sold  land  to  Polk,  partly  on  credit.  He  enforced  his 
lien,  and  the  land  was  sold  under  a  decree  and  bought  hy  Jor- 
dan, who  paid  most  of  the  purchase-money,  and  gave  his  note 
for  the  balance  to  Polk ;  that  is,  the  excess  of  his  bid  over  the 
sum  due  to  Moore,  who  was  fully  paid.  The  clerk  and  master 
reported  the  sale  to  the  court,  and  that  Jordan  had  paid  the 
purchase-money  in  full ;  so  the  sale  was  confirmed.  Polk  sued 
upon  his  note,  and  Jordan  and  wife,  defendants,  claimed 
homestead  in  the  land. 

The  court  said,  after  holding  that  Polk  had  not  the  vendor's 
lien:  "  A  more  difficult  question  is,  whether  Polk  is  not  en- 
titled, under  our  homestead  laws,  and  loithout  refei'ence  to  the 
vendor'' s  equitable  lien,  to  subject  the  homestead  right  to  the 
satisfaction  of  his  debt  by  virtue  of  the  fact  that  it  is  for  the 
purchase-money  of  the  land.  .  .  .  It  is  obvious  that  the 
homestead  is  not  exempt  from  sale  '  for  the  satisfaction  of  any 
debt  or  liability  contracted  for  its  purchase.'  It  may  be  sold 
by  execution  issued  on  a  judgment  recovered  on  such  a  debt, 

roe,  14  Mass.  351 ;  Holbrook  v.  Fin-        2  Const  Tenn.,  arL  11,  §  11. 

uey,  4  Mass.  566.  3  Rev.  Stat  Term.  (T.  &  S.),  §  2114a. 

1  Stephens   v.   Smith,   63  Ga.  177; 
Tift  V.  Newsom,  44  Ga.  600. 


r)4-2  LIABILITY    F(»K    I'UKCII ASE-MONEY,  ETC. 

or  otherwise  subjected  by  legal  process.^  The  creditor  pro- 
ceeds, not  hy  mrtue  of  the  vendor's  lien,  which  is  only  enforce- 
able in  equity,  and  may  be  lost  by  waiver,  but  by  virtue  of 
the  general  right  of  a  creditor  to  subject  his  debtor's  property 
by  '  legal  process,' —  the  homestead  exemption  not  ai)plying  to 
such  a  debt.  Unless,  therefore,  the  facts  in  this  case  take  the 
'  debt  or  liability '  out  of  the  proviso  of  the  statute,  the  right 
to  subject  the  property,  covered  by  the  homestead  claim,  to 
its  satisfaction,  would  seem  to  be  clear.     .     .     . 

"  The  fact  is  indisputable  that  the  purchase-money  repre- 
sented by  the  note  in  controversy  has  not  been  paid,  and  it  is 
this  fact  which  prevents  the  operation  of  the  homestead  ex- 
emption. The  statute  has  guarded  against  the  injustice  of 
exempting  land  from  liability  for  the  debt  by  which  it  was 
obtained ; —  an  injustice  so  obvious  that  the  courts  of  the  states, 
where  no  statutory  jn^ovision  on  the  subject  exists,  have  made 
the  exception  themselves.  .  .  .  All  the  authorities  agree 
that  the  homestead  continues  liable  as  long  as  any  part  of  the 
purchase-money  remains  unpaid,"  ^ 

"  It  is  the  debt  which  the  statute  provides  for,  without  re- 
gard to  the  form  it  may  assume."  ^ 

Judge  Freeman  says  of  money  borrowed  to  pay  for  a  home- 
stead :  "  This  could  in  no  sense  be  held  to  be  the  purchase- 
money  of  the  land.  That  had  been  paid  by"  the  purchaser 
"with  borrowed  money.  "  This  was  a  debt  for  borrowed 
money,  advanced  or  loaned,  it  is  true,  to  pay  for  the  land,  but 
still  but  a  debt  for  loaned  money.  The  lien  on  the  face  of 
the  note  did  not  make  it  such.  That  was  a  form  of  security 
carried  out  by  the  parties  themselves,  but  is  not  a  vendor's 
lien,  but  one  by  contract. 

"  The  using  of  borrowed  money  to  pay  for  land  does  not 
give  the  lender  the  right  even  to  be  subrogated  to  the  vendor's 
lien,  much  less  does  the  note  given  for  such  money  give  such 
lien.     .     .     . 

"  This  being  so,"  one  who  paid  a  judgment  rendered  in 
favor  of  the  lender  and  others  "  cannot  claim  to  be  subrogated 

1  Citing  Woodlie  v.  Towles,  1  Mem-  the  last  quoted  statement,   Bush  v. 

pljisL.,  J.  68;   S.  C,  1  Leg.  Eep.    331.  Scott,  76  111.  525;  Harris  v.  Glenn,  56 

■^Bentley  v.   Jordan,   3   Lea,    353,  Ga.  94. 

Cooper,  J.,   for  the  court,  citing   for  ^  j^. 


IIORROWKI)    .V.NI)     IMKC'lIASK-MoMO      DISH  N(a'I.>«lIP:D.  'Mo 

to  a  vendor's  lien  by  having  paid  the  judgments  stayed  by 
liim.  The  notes  themselves  were  not  entitled  to  such  lien; 
and,  as  a  matter  of  course,  paying  them  cannot  give  such  a 
right."  So  the  bill,  filed  by  the  borrower  and  his  wife  for 
tlie  homestead  bought  with  the  money  of  another,  was  sus- 
tained.^ 

Decisions  are  not  uniformly  favorable  to  the  borrower.  It 
is  maintained  that  as  money  borrowed  to  pay  a  lien-holder  is 
not  in  the  nature  of  purchase-nM)ney,  the  lender,  without  con- 
tract to  that  effect,  is  not  subrogated  to  the  rights  of  the 
former  lien-holder.-  But  if  the  borrowing  transaction  is  such 
that  it  created  a  property-debt  against  the  land  subsequently 
or  simultaneously  bought,  a  lien  will  be  created  which  will 
liold  against  the  homestead  right.'' 

The  doctrine  is  that  the  mere  fact  that  money  was  loaned 
to  raise  the  lien  does  not  show  subrogation. 

Borrowed  money  is  not  "purchase-money"  as  the  phrase  is 
used,  though  the  borrower  may  buy  land  with  it,  give  his  notes 
for  it  to  the  lender,  and  secure  them  upon  the  land  purchased. 
The  lender  may  have  a  lien  given  him  upon  the  land  bought, 
but  it  is  not  the  vendor's  lien.^  The  latter  is  always  to  secure 
the  price  of  the  land.  So  a  note  held  by  the  vendor  may  have 
been  renewed,  and  the  rate  of  interest  changed,  yet  his  lien 
would  not  be  lost,'*  But  a  third  person,  lending  money  to 
take  up  such  note,  should  have  himself  secured  by  conven- 
tional lien  (since  the  money  he  advances  is  not  technically 
"  purchase-money  "),  in  states  where  the  language  of  the  statute 
is  not  broad  enough  to  give  such  advances  as  favorable  a  po- 
sition as  they  have  under  the  statutes  of  several  other  states. 
Nowhere  is  a  lien  established  by  the  mere  loan  of  money  to 
the  purchaser  of  a  homestead  to  enable  the  latter  to  pay  for 
the  property.  The  debt  created  by  the  borrower  is  merely  a 
personal  debt.  But  it  is  generally  favored  above  other  per- 
sonal debts  of  the  homestead  holder  by  excepting  it  from  the 

1  Gray  v.  Baird,  4  Lea.  212,  citing  ■*  Gray  v.  Baird,  4  Lea,  212 ;  Durant 
Durant  v.  Davis,  10  Heisk.  522.  v.  Davis.  lOHeisk.  522.  Contra:  Guinn 

2  White's  Adm'r  v.   Curd,  86  Ky.     v.  Spurgin,  1  Lea,  228. 

191 ;  Griffin  v.  Procter,  14  Bush,  571.        ^Bentley  v.  Jordan,  3  Lea,  353.   See 

3  Purcell  V.  Dittman,  81  Ky.  148 ;  De  Hymel  v.  Mortgage  Co.,  80  Tex. 
Bradley  v.  Curtis,  79  Ky.  327.  493. 


344  LIABILITY    FOR    PURCHASE-MONEY,  ETC. 

exemption  provision.  While  other  ordinary  debts,  prosecuted 
to  judgment  against  him,  result  in  no  general  judgment  lien 
against  the  homestead,  a  debt  for  borrowed  mone}^  to  pay  for 
a  homestead  or  its  improvement,  when  prosecuted  to  judg- 
ment, against  him,  does  result  in  a  general  judgment  lien  in 
vindication  of  which  the  homestead  may  be  subjected  to  forced 
sale,  according  to  many  statutes.  Exemption  is  inapplicable 
to  such  an  ordinary  debt,  where  this  rule  prevails. 

Whether  this  rule  prevails  or  not,  in  any  particular  state,  is 
sometimes  left  questionable  by  the  language  of  the  statute 
there.  If  only  purchase-money  is  excluded  from  the  opera- 
tion of  exemption,  borrowed  money  to  pay  purchase-money 
clearly  is  not.  But  take  this  provision :  "  No  property  shall, 
by  virtue  of  this  act,  be  exempt  from  sale  for  non-payment  of 
taxes  or  assessments,  or  for  a  debt  or  liability  incurred  for  the 
purchase  or  improvement  thereof."  ^  It  will  be  noticed  that 
the  phraseology  is  peculiar.  It  is  not  that  "  no  property 
shall  ...  be  exempt  from  sale  for  the  non-payment  of 
taxes,  assessments  "  and  its  purchase-price  or  the  cost  of  im- 
provements. This  would  have  been  a  natural  form  of  ex- 
pression, if  the  exclusion  of  technical  "  purchase-money  "  was 
meant,  and  the  cost  of  improvements  was  meant.  But  we 
have  the  roundabout  verbiage,  "  debt  or  responsibility  in- 
curred for  the  purchase,"  which  would  not  be  out  of  the  way 
if  borrowed  money  to  pay  the  price  was  meant  to  be  included. 
Does  it  not  seem  probable  that  the  legislator  employed  this 
language  for  the  purpose  of  including  such  borrowed-money 
debt  as  well  as  the  price  proper?  If  one  borrows  money  to 
pay  his  vendor,  he  certainly  "incurs"  a  debt.  He  "incurs" 
this  debt,  not  hy  the  purchase,  but  "  for  the  purchase  "  as  the 
statute  has  it.  So,  if  there  is  "  a  debt  or  liability  incurred 
for  .  .  .  the  improvement "  of  his  homestead,  may  it  not 
have  been  done  by  obtaining  a  loan  with  which  to  pay  the 
carpenter,  as  well  as  by  going  in  debt  to  the  carpenter  him- 
self? 

Were  the  question  pristine,  it  would  seem  that  the  legisla- 
tor not  only  meant  that  debt  contracted  by  borrowing  to  p;iy 
for  a  homestead  or  its  improvement  should  be  excepted  from 

1  iiL  Stat.  (s.  &  c),  p.  1102,  ir  a 


MOJiKoWKI)    AM)    rriJCIlASK-MONKY    DISTlNfillSIIKD.  'Miy 

the  exemption,  but  that  he  said  what  he  meant.  As  it  is  not 
new  and  open  under  the  statute  cited  (though  similar  phrase- 
ology may  yet  have  construction  under  other  statutes),  it 
seems  now  necessary  to  show  how  the  rightful  interpreters 
have  answered:  "Where  money  is  borrowed  with  a  view  of 
being  used  in  the  purchase  or  improvement  of  real  estate,  and 
is  so  used,  it  cannot,  in  such  case,  be  said  properly  that  the 
liability  or  debt  incurred  by  such  borrowing  is  a  debt  incurred 
for  the  purchase  of  the  property,  or  a  debt  or  liability  for  the 
improvement  thereof.  As  between  the  lender  and  the  bor- 
rower, it  is  a  liability  for  money  loaned.  As  between  the  bor- 
rower and  the  vendor  to  him  of  the  property,  it  may  be  pur- 
chase-money ;  and  as  between  the  borrow^er  and  the  maker  of 
the  improvements,  it  may  be  regarded  as  paid  for  a  debt  '  for 
the  improvement  thereof.' "  ^  How  consonant  would  have  been 
the  addition:  As  between  the  borrower  and  the  lender  of 
money  to  be  used  and  actually  used  in  buying  a  homestead, 
the  debt  created  is  "  incurred  for  the  purchase ! " 

It  had  been  held  that  if  the  lender  advanced  cash  to  pay 
the  price  of  the  homestead  at  the  time  of  the  purchase,  the 
purchaser  incurred  a  debt  or  obligation  to  him  for  the  pur- 
chase, for  which  the  homestead  was  liable.-  And  that  when 
a  balance  of  price  was  paid  by  a  third  person  at  the  request 
of  the  homestead  purchaser,  the  debt  incurred  by  the  latter 
was  for  purchase-money.^  But  if  the  money  is  lent  to  the  pur- 
chaser, that  he  may  pay  it  over  to  the  vendor,  this  is  not  a 
debt  incurred  for  the  purchase,  it  is  held.^ 

The  difference  between  purchase-money  and  borrowed- 
money -to-pay -purchase-money  is  that  the  former  is  secured  by 
the  vendor's  lien  while  the  latter  is  not  secured  by  any  lien. 
There  may  be  a  conventional  lien  created  by  the  agreement 
of  the  parties  —  the  lender  and  the  borrower  —  but  the  law 
creates  none.  Wherever,^ then,  such  broad  language,  as  that 
above  quoted  from  the  statute,  is  found  in  other  statutes  and 
held  to  include  loans  to  the  purchaser  that  he  may  pay  the 
price,  the  lender  has  no  lien  by  virtue  of  his  loan,  but  he  may 

'Parrottv.  Kumpf,  102  111.  433, 4^7.  cited  in  the  Parrott  Case;  Winslow 

2Austinv.  Underwood,  37  111.438.  v.  Noble,  101   111.  194.     See  Best  v. 

3  Magee  v.  Magee,  51  111.  500.  Gholson,  89  III  465. 
♦  Eyster  v.  Hathaway,  50  111.  521, 


34()  LIAlilLITY    P^OR    I'UKCIIASE-MONEV,  ETC. 

get  judgment  and  vindicate  the  general  judgment-lien  against 
the  borrower's  homestead  —  for  there  is  no  exemption. 

§  5.  Notes  for  Price  in  Third  Hands. 

The  authorities  sustain  thje  proposition  that  the  character 
of  a  debt  and  of  the  vendor's  right  of  payment  out  of  the  land 
he  has  sold  is  not  affected  by  changing  the  form  of  the  evi- 
dence of  the  debt  by  securing  it  with  additional  security,  real 
or  personal,  or  new  security,  or  higher  security.^ 

"  Nor,  as  between  the  parties,  is  the  lien  waived,  lost  or 
abandoned  by  the  fact  that  the  original  note  for  the  purchase- 
money  was,  by  the  direction  of  the  vendor,  executed  to  a  third 
person.  Nor  is  such  a  lien  lost,  as  between  the  parties,  by  thr 
fact  that  such  third  person  afterwards  surrenders  to  the  vendee 
his  original  note  (as  in  this  case),  and  takes  others  in  its  stead."  ' 

A  man  and  wife  bought  land  on  which  the  vendor  owed  v. 
thousand  dollars  to  his  grantor,  which  debt  was  a  lien  upon 
the  land.  All  the  parties  agreeing,  the  marital  purchasers 
gave  their  joint  note  to  their  vendor's  grantor  who  retained 
his  lien.  Then  title  was  passed  to  the  wife  only,  by  the  vendor, 
who  acknowledged  the  payment  to  him  of  fifteen  hundred 
dollars,  which  included  the  thousand  of  the  note.  It  was  held, 
under  these  circumstances,  that  the  wife,  though  a  married 


1  Bentley  v.  Jordan,  3  Lea,  353,  360 
Austin  V.  Underwood,  37  111.  438 
WafTord  v.  Gaines,  53  Ga.  485 
Hawkes    v.    Hawkes,    46    Ga.    204 


Weaver's  Estate,  25  Pa,  St.  434: 
Reed  v.  Defebaugh,  24  Pa.  St  49r). 
Compare  Harley  v.  Davis,  16  Mini  . 
487;  Phelps  v.  Conover,  25  111.  314: 


Chase  V.  Abbott,  20  la.  154;  Dick  V.  Eyster    v.    Hathaway,   50    111.    522; 

Powell,  2  Swan  (Tenn.),  632 ;   Mul-  Adams  v.  Jenkins.  16  Gray,  146. 
herrin  v.  Hill,  5  Heisk.  58 ;  Stratton        2  Joiner  v.   Perkins,   59  Tex.   300. 

V.  Perry,  2  Tenn.  Ch.  633 ;  Burns  v.  citing  De  Bruhl  v.  Maas,  54  Tex.  473 : 

Thayer,  101  Mass.  426;  Ladd  v.  Dud-  Gillum  v.  Collier,  53  Tex.  592;  Cleni- 

ley,  45  N.  H.  61 ;  AVeymouth  v.  San-  ents  v.  Lacey,  51  Tex.  150 ;  Irvine  v. 

born,  43  N.  H.  171 ;  Strachn  v.  Foss,  Garner,   50  Tex.   448 ;    Flanagan  v. 

42  N.  H.  43 ;  Wood  v.  Lord,  51  N.  H.  Cushman,  48  Tex.  241 ;  Prince  v.  Ma- 

448;  Kibbey  v,  Jones,  7  Bush,  243;  lone   (Gal.  Term,  1881,  declining  to 

Pryor  v.  Smith,  4  Bush,  379 ;  Lowry  follow  Malone  v.  Kaufman,  38  Tex. 

V.  Fisher,  2  Bush,  70;    Pratt  v.  To-  154).     See,  also.  Hicks  v.  Morris,  57 

peka  Bank,  12  Kas.  570 ;  Woodlie  v.  Tex.  659   (expressly  overruling   Ma- 

Towles,  1  Leg.  Rep.  331 ;  McLaughlin  lone  v.  Kaufman,  supra) ;  Pinchaiu 

v.  Bank,  7  How.  228 ;  Birrell  v.  Schie,  v.    Collard,   13  Tex.    333 ;   Senter   v. 

9  Cal.   104 ;   Dillon  v.  Byrne,  5  Cal.  Lambeth.  59  Tex.  259 ;  Glaze  v.  Wat- 

455 ;  Mills  v.  Spaulding.   50  Me.  57 ;  sou,  55  Tex.  563. 


NOTKS    FUK    I'RWE    IX     11111:0    HANDS.  347 

woman  when  she  made  the  note,  could  not  hold  the  land  and 
repudiate  her  contract.' 

A  mortgage  that  is  valid  against  a  homestead,  or  a  note  for 
purchase-money,  may  be  assigned  so  that  the  transferee  shall 
be  subrogated  to  the  rights  of  the  original  holder.-  At  the 
request  of  the  owner  of  the  homestead,  with  the  obligation  to 
pay  assumed,  subrogation  would  take  place.^  If  the  purchaser 
of  a  homestead  has  agreed  to  ])ay  the  purchase-money  to  a 
person  other  than  his  grantor,  such  person  derives  from  the: 
agreement  between  the  contracting  parties,  and  that  between 
the  grantor  and  himself,  for  valid  consideration,  the  right  and 
lien  which  the  grantor  would  have  had."*  And  it  has  been 
held  that  an  attaching  creditor  may  redeem  the  land  attached 
from  a  mortgage,  and  become  in  equity  the  assignee  of  the 
mortgage  debt,  as  though  he  had  been  requested  by  the  mort- 
gagee to  redeem  it.  So  he  is  entitled  to  "  keep  the  debt  on 
foot,"  with  its  securities,  against  the  debtor.^ 

"  The  assignment  of  a  note,  given  for  the  purchase  of  real 
estate,  carries  with  it  the  lien  of  the  vendor  and  all  the  equi- 
ties and  remedies  the  latter  would  have  had  if  he  had  never 
parted  with  the  debt.  And  this  on  principle  would  seem  to 
be  the  better  rule.  What  reason  can  be  given  why,  if  the  as- 
signment of  the  debt  carries  with  it  the  lien,  any  and  all  other 
equities  and  rights  do  not  necessarily  follow?  The  principal 
thing  is  the  debt ;  the  lien  is  an  incident  and  the  prmcipal  one 
that  attaches  to  it.  If,  then,  the  debt  and  the  principal  inci- 
dent pass  to  the  assignee,  why  not  all  other  equities  and 
rights?  "^ 

The  vendor's  lien  may  be  waived  by  giving  up  the  note  and 
taking  personal  security  for  the  debt  instead  of  the  property 
sold.  It  has  been  held  that  the  assignment  of  the  original 
note  is  waiver  of  the  lien.''  Ordinarily,  the  note  and  lien  go 
together  into  the  hands  of  the  assignee.     The  note,  without 

iPurcell  V.  Dittnian,  81  Ky.  148.  4  pinchain  v.  Collard,  13  Tex.  333; 

2  Lamb  v.  Masoo,  50  Vt.  350 ;  Keyes  Hamrick  v.  Bauk,  54  Ga.  53. 

V.  Wood,  21  Vt.  331 ;  Pratt  v.  Bank,  5  Lamb  v.  Mason,  50  Vt.  351 ;  War- 

10  Vt  293.  ren  v.  Warren,  30  Vt.  530. 

» Magee  V.  Magee,  51  III.  500 ;  Aus-  « Bills  v.  Mason,   42  la.  329,  333; 

tin  V.  Underwood,  37  111.  438 ;  Carr  Blair  v.  Marsh,  8  la.  144. 

V.  Caldwell   10   Cal.  385 ;  Lassen  v.  •  Moshier  v.   Meek,  80  111.  79.     See 

Vance,  8  Cal.  271.  Ontario  State  Bank  v.  Gerry,  91  Cal.  94, 


348  LIABILITY    FOB    PURCHASE-MONET,  ETC. 

the  lien,  would  be  worthless  if  the  debtor  owned  nothing  but 
his  homestead. 

Nothing  which  the  debtor  can  do,  short  of  payment,  can 
rid  the  home  of  the  lien  bearing  upon  it.  He  cannot  relieve 
the  property  by  selling  it.  Should  he  sell,  and  afterwards 
take  the  property  back,  the  original  lien  would  remain. 

The  cancellation  of  a  deed  absolutely  conveying  the  home- 
stead, and  executed  by  both  husband  and  wife,  does  not  re- 
invest them  with  such  right  as  to  prevent  the  land  from  sale  to 
satisfy  unpaid  purchase-money  notes  held  by  a  party  which 
acquired  them  before  the  cancellation.' 

If  the  assignee  of  a  note,  given  for  homestead  purchase- 
money,  should  surrender  it  to  the  maker  and  take  the  latter's 
note  in  exchange,  it  is  held  that  the  property  will  be  bound 
by  a  trust  deed  given  to  secure  the  note.^  The  new  note,  in 
such  case,  stands  in  the  place  of  the  old  one,  and  is  evidence 
of  a  debt  incurred  by  the  purchase  of  the  homestead  property ; 
for  the  consideration  has  merely  changed  form  without  chang- 
ing character.* 

An  exemptionist,  renewing  a  note  with  lien  on  his  home- 
stead w^hich  had  been  originally  given  before  his  marriage, 
rebinds  the  hypothecated  property.*  And  he  cannot  avoid 
responsibility  by  having  that  property  conveyed  afterwards 
to  his  wife,  through  a  third  person,  in  fraud  of  the  creditor 
holding  the  secured  note,  to  whom  it  was  given.'^ 

If  the  deed  given  to  the  intermediary  \vas  fraudulent,  that 
from  him  to  his  grantor's  wife  will  be  deemed  tainted  with 
the  same  disease.® 

A  deed  of  trust  of  land  subject  to  homestead  and  subject  to 
the  purchase-money  lien  is  not  fraudulent  because  of  such 
reservations.''     There  might  be  fraudulent  concealment  of  the 

1  Brooks  V.  Young,  60  Tex.  32.  4  Hambrick  v.  Jones,  64  Miss.  240 : 

•-'  Williams  v.  Jones,  100  111.  362,  on  Miss.    Code,    1880,   §  2692 ;   Smith  v. 

statute  providing  that  "  no  property  Scherck,  00  Miss.  491.    See  Billings) y 

shall    ...     be  exempt  from  sale  v.  .JSTeblett,  56  Miss.  537. 

.    .     .     for  a  debt  or  liability  incurred  5  ib_ 

for  the   purchase    or    improvement  *  Pope  v.  Pope,  40  Miss.  516;  Lin- 

thereof."      Kimble   v.   Esworthy,    6  coin  v.  Claflin,  7  Wall.    132;  Carey 

Bradw.  517.  v.  Hotailing,  1  Hill  (N.  Y.).  311. 

3  Wood  V.  Lord,  51  N.  H.  448.     See  'Carter  v.  Hicks.  2  Lea,  511. 
Ladd  V.  Dudlev,  45  N.  H.  61. 


NOTES    FOR    I'KICK    IN    THIlil)    HANDS.  349 

homestead   character  of  the   proj^erty  and  of  the  purcluise 
money  lien  which  would  outrank  the  trust  deed ;   but,  if  the 
grantee  of  the  trust  is  made  acquainted  with  the  true  state  of 
facts,  there  certainly  would  be  no  fraud  in  giving  the  deed. 

There  are  some  transactions,  reported  in  the  books,  which 
seem  to  contradict  what  has  been  above  said,  that  nothin<r 
which  the  debtor  can  do,  short  of  payment,  can  rid  the  home 
of  the  lien  bearing  upon  it. 

A  purchaser  bought  a  house  and  lot  on  credit,  and  then 
deeded  the  property  to  his  wife.  He  gave  his  note  for  the 
purchase-money;  and,  at  his  request,  the  note  was  bought  by 
a  third  person.  The  homestead,  thus  bought  but  not  paid  for, 
was  held  exempt  from  judgment  on  this  note  given  for  pur- 
chase-money and  transferred  to  third  hands  in  the  course  of 
business.  It  was  even  held  that  if  the  wife  herself  (who  had 
become  the  holder  of  the  legal  title  to  the  property)  had  been 
the  maker  of  the  note,  and  had  requested  the  third  party  to 
purchase  it,  he  would  have  had  no  right  against  her  estate  of 
homestead ;  that,  admitting  the  acts  of  herself  and  husband  to 
be  fraudulent,  the  holder  of  the  note  could  not  make  his 
money,  as  purchase-money  or  in  any  way,  out  of  the  property 
thus  obtained  without  price  or  consideration.^ 

The  court  said  that  the  right,  which  the  payee  of  the  prom- 
issory note  had  had,  to  enforce  the  vendor's  lien,  was  per- 
sonal, and  was  ended  when  he  indorsed  the  note  to  a  third 
person,  though  the  maker  consented  to  the  transfer,  or  ad- 
vised it.'^ 

If  the  lien  was  once  fastened  upon  the  realty,  could  it  be 
dislodged  by  the  transfer  of  the  evidence  of  the  debt?  It 
was  a  property  debt  if  the  property  was  bound  for  it,  as  in 
<5ase  of  all  vendor's  liens  whether  on  homesteads  or  not,  and 
of  all  liens  on  realty,  whether  on  homesteads  or  not.  For 
exemption  has  nothing  to  do  with  lien  debts. 

1  Gruhn  v.  Richardson,  128  III.  178.  by  the  ruling  in  Allen  v.  Jackson, 

Citing  Winslow  v.  Noble,  101  111.  194 ;  123  111.  567." 

Eyster    v.    Hathaway,    50    111.    522.  -  Gruhn  v.  Richardson,  fnipra,  cit- 

Adding:  "  Even  the  fraudulent  acts  ing  Richards  v.  Learning,  27  111.  432 ; 

of  the  party  entitled  to  a  homestead  Keith   v.    Horner,    33  111.   524 ;   Mc- 

are  not  allowed  to  divest  that  right.  Laurie  v.  Thomas,  89  111.  291 ;  Lehn- 

Leupold  V.  Krause,  95  III.  440.     The  dorf  v.  Cope,  123  111.  333. 
•case  made  is,  as  we  think,  governed 


350  LIABILITY    FOR    PURCITASE-MONEV,  ETC. 

The  lender,  by  advancing  the  price  to  the  purchaser,  becomes 
only  an  ordinary  creditor,  though  a  favored  one  where  the 
exemption  statute  excepts  the  debt  due  him  against  the  house- 
holder from  the  operation  of  the  exemption.  II is  credit  is 
merely  personal,  no  doubt;  and,  should  he  assign  it,  the  as- 
signee does  not  have,  necessarily,  the  same  right  to  obtain  a 
general  judgment  lien  bearing  on  the  homestead,  that  the  as- 
signor had  possessed.  Whether  this  right  passes  on  assign- 
ment depends  on  the  statute  of  each  state  as  construed  by 
the  supreme  court  of  each.  But  everywhere  a  lien-bearing 
debt  is  a  property  debt,  and  one  non-lien-bearing  is  per- 
sonal. 

If  the  statute,  in  excepting  from  exemption,  nauies  the  char- 
acter of  debt  that  is  thus  exce})ted  (and  not  the  kind  of  cred- 
itor whose  claim  is  to  be  good  against  the  homestead),  it 
would  seem  that  transfer  or  assignment  would  not  forfeit  the 
right.  For  instance,  if  any  deht  incurred  for  the  purchase  of 
the  homestead  is  the  language  employed,  and  if  the  courts  con- 
strue the  language  to  include  debts  created  by  loan  of  money 
to  pay  the  vendor,  then  the  transfer  of  the  debt  ought  not  to 
forfeit  the  right  reserved  by  the  exceptit)n  of  such  debt  from 
the  operation  of  exemption.  On  the  other  hand,  if  the  stat- 
ute provides  that  persons  advancing  money,  to  purchasers 
of  homesteads,  to  pay  the  price,  shall  not  be  affected  by  the 
homestead  exemption  law,  the  assignment  of  their  claims  to 
others  who  are  not  loaners  would  not  carry  with  it  the  right 
to  create  a  lien  on  the  homestead  by  judgment,  to  be  fol- 
lowed by  execution  and  forced  sale. 

§  6.  Marshaling  Accounts,  as  to  Homestead. 

A  debtor,  insolvent  apart  from  a  costly  and  elegant  home- 
stead, gave  his  note  for  five  thousand  dollars  in  consideration 
of  several  loans  previously  made  to  him,  the  first  of  which 
was  of  fifteen  hundred  dollars  before  he  had  acquired  the 
homestead.  He  had  made  payments  exceeding  this  last  men- 
tioned loan  without  directing  their  application.  The  payee 
did  not  indorse  them  on  the  note  nor  designate  their  applica- 
tion to  any  special  loan.  "  In  view  of  the  evident  purpose  of 
the  law  to  protect  the  homestead,  held  that  the  payments 
should  be  so  applied  as  to  cancel  the  fifteen  hundred  dollars 


MABSHALINC;    ACCOUNTS,   AS     lO    IIO.\[KSTEAD.  351 

indebtedness  which  might  otherwise  be  a  lion  on  the  home- 
stead." 1 

The  general  rule  govei'ning  payments  on  an  open  account 
is  that  they  are  to  be  applied  to  the  extinguishment  of  the 
items  in  the  order  of  their  dates.-  The  court,  in  the  case  above 
mentioned,  considered  that  the  running  account  had  l)een  set- 
tled by  the  giving  of  the  note,  so  that  the  rule  did  not  apply, 
if  indeed  it  had  not  consisted  previously  of  "distinct  debts" 
rather  than  items  of  account.  If  neither  party  elected  to 
what  items  of  indebtedness  the  five  thousand  dollar  note  pay- 
ment should  be  accredited,  "then  the  law  applies  it  according 
to  its  own  notions  of  justice."  '' 

The  court  admitted  that  the  rule  for  applying  payments,  so 
as  to  preserve  the  creditor's  security  by  crediting  them  to  un- , 
secured  items  or  to  those  less  secured,  has  strong  support  on 
authority,  if  slightly  modified,^  so  as  to  be  applied  only  under 
equitable  considerations  applicable  to  special  cases. 

It  held  that  since  neither  party  had  elected  whether  the 
payment  should  be  applied  to  the  extinguishment  of  the  fif- 
teen hundred  dollar  debt,  it  should  be  so  applied  as  to  pre- 
serve the  homestead  to  the  debtor  and  his  wife.  The  court 
added :  "  Under  the  head  of  '  The  justice  of  the  case,'  the  ap- 
pellant calls  attention  to  the  character  of  the  homestead  in 
this  case,  it  being  stated  that  it  contains  about  forty  acres, 
with  buildings  costing  about  ten  thousand  dollars,  with  ter- 
races, drives,  etc.,  and  that  the  homestead  was  built  in  part 
with  the  money  obtained  from  the  plaintiff.  It  has  seemed 
to  be  the  policy  of  legislation  in  this  state  not  to  place  restric- 
tions on  the  value  of  homesteads.  We  have  no  greater  dis- 
cretion in  the  application  of  the  law  in  a  case  like  this  than  in 
a  case  where  the  homestead  as  to  value  would  be  at  the  other 
extreme.     In  either  case,  the  rule  applicable  to  the  facts  is 

1  First  N.  Bank  of  Stewart  v.  Hoi-  »  Citing  Whitiog  v.  Eichelberger, 
linsworth,  78  la.  575.  (The  extract  is  16  la.  423,  and  referring  to  the  pre- 
f  rom  the  syllabus  of  the  reported  case.)  vious  citations. 

2  76.,-  cjhng  Field  V.  Holland,  6  Cr.  ^Citing  Leeds  v.  Gifford,  5  Atl. 
8 ;  Mack  v.  Adler,  22  Fed.  Rep.  570 ;  (N.  J.)  795 ;  Hersey  v.  Bennett,  28 
Schulenburg  v.  Martin,  2  Fed.  Rep.  Minn.  86 ;  Coons  v.  Tome,  9  Fed,  532 : 
747;  Pardee  v.  Markle,  111  Pa.  St.  Sanborn  v.  Stark,  31  Fed.  18.  See 
651 ;  Hannon  v.  Fugleman,  49  Wis.  Nichols  v.  Knowles,  17  Fed.  494 

278 ;  Hersey  v.  Bennett,  28  Minn.  86. 


352  LIABILITY    FOU    I'UKCH AtJE-MONEV,   KTC. 

the  same.  Again,  while  the  statement  as  to  the  cost  may  be 
true,  it  is  doubtful,  in  view  of  the  record,  if,  after  discharging 
the  four-thousand-dollar  incumbrance,  there  remains  a  home- 
stead of  extravagant  value.  The  house  seems  to  have  been 
built  when  the  defendant  was  thought  to  be  solvent  and  pros- 
perous in  business.  ,  .  .  It  is  conceded  that  the  defend- 
ant is  insolvent,  and  that  his  other  property  has  been  applied 
to  the  payment  of  his  debts.  To  us  it  does  not  seem  a  greater 
hardship  to  the  plaintiff  than  to  the  other  creditors."  ^ 

If  there  is  error  in  this  decision,  it  is,  perhaps,  attributable 
to  treating  the  application  of  the  payments  as  coming  under 
an  exception  to  the  rule  above  stated.  The  homestead  was 
liable  for  debts  contracted  prior  to  its  purchase  and  occupancy, 
and  the  fifteen  hundred  dollar  debt  seems  to  have  been  prior. 

§  7.  Mortgage  for  the  Price. 

A  mortgage  for  the  purchase-money,  given  simultaneously 
with  the  taking  of  a  deed  absolute  in  form,  is  deemed  prior  to 
the  transfer  so  far  as  to  give  it  precedence  over  later  liens  put 
upon  the  property .^  A  married  man  may  act  alone  in  securing 
the  purchase-money  to  his  vendor,  when  acquiring  property 
to  be  dedicated  as  a  homestead,  for  his  wife's  right  in  it  has 
not  yet  arisen.  Hence  it  is  held  that  though  the  requirement, 
that  the  signature  of  the  wife  must  accompany  that  of  the 
husband  in  the  conveyance  of  the  homestead,  is  strictly  en- 
forced, yet  mortgages  to  secure  purchase-money  are  excepted 
from  the  requirement.* 

The  signatures  of  both  husband  and  wife  are  unnecessary 
when  a  mortgage  is  given  to  secure  the  price  of  a  homestead 
to  be  established.     Only  the  one  taking  the  title  need  sign.* 

Nor  is  the  wife's  signature  essential  to  the  renewal  of  an 

1  First  N.  Bank  v.  Hollingsworth,  Phillips  v.  Stauch,  20  Mich.  369 ;  Stev- 
supra.  enson    v.    Jackson,    40    Mich.    702; 

2  Curtis  V.  Root,  20  111.  57.  Watertown   Ins.  Co.  v.  Sewing  Ma- 
SBeecher   v.  Baldy,  7   Mich.  488;     chine  Co.,  41   Mich.  131;  Sherrid  v. 

Dye  V.  Mann,  10  Mich.  291 ;  McKee  Southwick,  43  Mich.  515 ;  Shoemaker 

V.  Wilcox,  11  Mich.  358;  Ring  V.Burt,  v.    Collins,   49  Mich.   595;     Hall    v. 

17   Mich.  465 ;  Fisher  v.  Meister,  24  Loomis,  63  Mich.  709 ;  Girzi  v.  Carey, 

Mich.  447 ;  Snyder  v.  People,  26  Mich.  53  Mich.  447. 

106 ;  Comstock  v.  Comstock,  27  Mich.        *  Christy  v.  Dyer,  14  la.  438 ;  Yost 

97 ;  Wallace  v.  Harris,  32  Mich.  380 ;  v.  Devault,  9  la.  60. 

Amphlett  v.  Hibbard,  29  Mich.  298 ; 


MORIXSAGE    FOK    THE    PRICE.  353 

obligation  which  would  otherwise  be  soon  prescribed  by  time, 
by  which  a  mortgage  on  the  homestead  is  continued  in  force,' 

However  stringent  the  rule  of  restraint  against  the  husband's 
sole  alienation  of  the  homestead,  and  against  his  creation  of  a 
lien  upon  it  without  his  wife's  concurrence,  exception  is  made 
in  case  of  mortgage  to  secure  the  purchase  price.^ 

The  wife's  signature  is  necessary  to  a  mortgage  given  bj 
the  husband  to  secure  a  loan  obtained  by  him  and  paid  as  part 
of  the  price  in  exchanging  his  old  homestead  for  a  new  one, 
when  the  mortgage  is  to  rest  on  the  latter,'  The  mortgage 
in  such  case  is  not  given  to  the  guarantor,  to  secure  purchase- 
money,  but  to  another  to  secure  him  for  money  loaned  bj 
him  for  any  purpose  the  borrower  may  design.  It  is  such  a 
hypothecation  of  the  homestead  as  involves  the  safety  of  the 
wife's  home,  and  her  signature  is  essential  to  the  validity 
of  it. 

To  pay  the  price,  the  husband  has  been  allowed  to  conve}' 
the  homestead,  notwithstanding  the  rule  forbidding  alienation 
without  her  consent.* 

The  reason  is  that  the  wife's  security  of  home  is  not  af- 
fected by  such  a  transaction.  She  has  no  right  to  it  till  the 
home  is  paid  for;  and  what  goes  to  pay  does  her  no  wrong. 
The  spirit  of  the  restraint  upon  alienations  imposed  by  statute 
is  not  violated  by  acts  of  the  husband  which  do  not  affect  the 
home.  For  instance,  if  homestead  enjoyment  remain  unmo- 
lested, the  husband  alone  ma}'^  grant  the  right  of  way  through 
the  exempt  property,  when  he  is  the  owner  of  the  legal  title.' 

1  Mahon  v.  Cooley,  36  la.  479.  See  not  confined  to  the  rights  of  the  wife, 
Burnap  v.  Cook,  16  la.  149.  but  extends  to  every  right  —  the  deed 

2  In  Minnesota,  a  conveyance  or  is  wholly  void.  Conway  v.  Elgin,  38 
mortgage  of  the  homestead  made  by  Minn.  469. 

a   married   man   without  his   wife's  ^  Dikenian  v.  Arnold,  71  Mich.  656. 

signature  is   absolutely  void,  unless  ■*  In  Texas  the  husband  alone  may 

given  to  secure  the  price  of  the  home-  convey  land  to  satisfy  the  claim  for 

stead.  Alt  v.  Banholzer,  39  Minn.  511.  its  purchase-money,  if  done  m  good 

The  invalidity  is  not  cured  by  subse-  faith  and  not  to  defraud  the  wife  of 

quent  abandonment  of  the  homestead  homestead  rights.     Roy  v.  Clarke,  75 

right    Barton  v.  Drake,  21  Minn.  299.  Tex.  28 ;  Clements  v.  Lacy,  51  Tex. 

Nor  is  want  of  the  wife's  signature  160. 

remedied  by  subsequent  divorce.  Alt  sottumwa  R.  Co.  v.  McWilliams, 

V.  Banholzer,  supra.     See  Same  par-  71  la.   164.     To  nearly  same  effect, 

ties,  36  Minn.  57.  And  the  invalidity  is  Chicago  R.  Co.  v.  Swinney,  38  la.  182. 
23 


354  LIABILITY    FOR   PURCHASE-MONEY,  ETC. 

So  he  may  grant  a  license  to  mine  upon  it,  when  the  home 
of  the  family  is  not  thereby  disturbed ;  at  least,  such  grants 
are  not  necessarily  void  because  not  signed  by  the  wife.^  And 
on  the  same  principle,  he  alone  may  give  a  mortgage  to  se- 
cure purchase-money. 

An  unrecorded  mortgage  for  purchase-money  has  been  given 
preference  over  a  recorded  mortgage  for  debt  not  excepted 
from  exemption,  though  both  were  held  valid  and  both  had 
been  duly  foreclosed.^ 

A  mortgagor,  without  title,  gave  a  mortgage  on  promise 
of  the  mortgagee  to  procure  him  the  title  to  the  land  thus  pre- 
mortgaged.  It  was  held  to  be  a  purchase-money  mortgage, 
against  the  land  subsequently  owned  by  the  mortgagor  as  his 
homestead.^ 

A  verbal  promise  not  to  foreclose  a  mortgage  was  held  not 
obligatory.'' 

§  8.  Payment  Essential  to  Ownership. 

The  purchaser  of  a  dwelling  or  land  for  a  homestead  buys 
as  though  he  had  any  other  purpose.  He  may  contract  alone. 
If  he  is  married,  his  wife  need  not  join  in  the  mortgage  to 
secure  the  purchase-money,^  as  already  shown. 

Land  bought  by  a  husband  for  a  home,  but  not  paid  for, 
may  be  given  up  by  him  alone;  or  he  alone  may  secure  the 
purchase-money,  by  mortgage  to  the  grantor.  The  reason  is 
that  ownership  being  necessary  to  the  enjoyment  of  exemption, 
the  right  does  not  attach,  quoad  the  creditor,  till  the  price  has 
been  paid.®  He  alone  may  adjust  equities  and  incumbrances 
existing  prior  to  the  purchase.^ 

1  Harkness  v.  Burton,  39  la.  101 ;  have  been  sold.  Semble.  Lawrence 
Chicago  R.  Co.  v.  Swinney,  38  la,  182.     v.  Grambling,  19  S.  C:.  461. 

See  Sibley  v.  Lawrence,  46  la.  563,  3  Whitney  v.  Traynor,  74  Wis.  289. 

relative  to  leasing  a  coal  mine  on  a  *  Martin  v.  McNeely,  101  N.  C.  634; 

homestead.  Boone  v.  Hardie,  87  N.  C.  72 ;  Bonham 

2  Walker  v.  Johnson,  64  Ga.  363.  v.  Craig.  80  N.  C.  224 ;  Kessler  v.  Hall, 
The  proceeds  of  a  judicial  sale  of  a  64  N.  C.  60;  Walters  v.  Walters,  11 
homestead,  sold  on  claim   for  pur-  Ired.  145. 

chase-money,  must  be  applied  to  the        *  Davenport  v.  Hicks,  54  Vt  23 ;  Alt 
satisfaction  of  the  oldest  execution,     v.  Banholzer,  39  Minn.  511.     See  au- 
in  South  Carolina,  though  under  that    thorities  in  sec.  6. 
exemption   the  property  could  not        *  De  Bruhl  v.  Maas,  54  Tex.  464. 

T  Gillum  v.  Collier,  53  Tex.  592. 


paymp:nt  p:sskntial  to  ownkksiiip.  355 

Ownership  being  one  of  the  conditions  of  homestead,  the 
purchaser  cannot  claim  the  privileges  of  exemption  against 
his  vendor  whom  he  has  not  paid ;  for  he  does  not  own  as  to 
him.  The  vendor's  right  is  superior;  and  it  has  been  held  that 
the  title  is  not  fully  vested  in  the  purchaser  before  the  pay- 
ment of  the  price. ^  This  is  clearly  true  when  he  holds  land 
under  a  bond  for  title,^  or  has  given  a  mortgage  for  the  pur- 
chase price.'"' 

If  title  is  taken  and  notes  given  for  the  purchase-mone}', 
they  are  considered  anterior  to  the  taking  of  the  title,  since 
it  is  said  that  the  contract  must  precede  the  purchase.  Both 
transactions  are  one,  in  a  sense,  but  it  is  held  that  purchase- 
money  notes  would  bear  on  a  homestead  as  evidences  of  pre- 
existing debt,  independent  of  the  special  statutory  provision 
that  purchase-money  debts  shall  so  bear,*  The  contract  to 
purchase  precedes  its  execution.'^ 

If  the  purchase-money  has  not  been  paid,  the  vendor  can 
recover  the  property  by  ejectment,  cr  suit  to  recover  under  a 
statute  so  empowering  him  to  proceed.^ 

The  purchaser's  title,  when  he  has  not  paid  for  the  prop- 
erty purchased,  though  not  good  against  the  vendor,  cannot 
be  disregarded  by  others  on  the  ground  that  the  price  has  not 
been  paid.  As  to  them,  the  condition  of  ownership,  in  respect 
to  homestead,  has  been  observed.^ 

A  contractor  to  sell  land  advanced  money  to  the  party 
agreeing  to  buy,  for  the  purpose  of  having  a  dwelling-house 
built  upon  it.  The  house  was  built,  with  the  understanding 
that  the  advances  should  be  repaid  before  the  giving  of  the 
deed.  The  buyer  occupied  the  dwelling  as  his  homestead, 
which  he  assigned  to  his  wife.  The  contractor  to  sell  (who 
had  received  part  of  the  price,  on  the  contract)  deeded  the 

J  Stone  V.  Darnell,  20  Tex.  14.  Carswell  v.  Hartridge,  55  Ga,  412 ; 

^  Farmer  v,  Simpson,  6  Tex.  310.  Diggers  v.   Bird,   55    Ga,   650.     See 

3  Curtis  V.  Root,  20  111.  57.  Lackey  v.  Bostwick,  54  Ga.  45 ;  Jolm- 

*Purcell  V.  Dittman,  81  Ky.  148;  son  v.  Griffin,  etc.  Co.,  55  Ga.  691; 

Bradley  v.  Curtis,  79  Ky.  327.  Bush  v.  Lester,  55  Ga.  579 ;  Isaacs  v. 

5  Christy  v.  Dyer,  14   la.  441  ;  Ste-  Tiuh'y,  58  Ga.  457. 

vens  V.  Stevens,  10  Allen,  146.     Com-        "McHeudry  v.  Reilly,  13  Cal.  76; 

pare  Thurston  v.  Maddocks,  6  Allen,  Clark  v.  Trawick,  56  Ga.  359;  Smith 

429.  V.   Whittle,  50  Ga.   626;  Hopper  v. 

« Broach  v.  Barfield,  57  Ga.  601;  Parkinson,  5  Nev.  233. 


Z56  LIAniLITY    FOR    PURCIIASK-MONET,  ETC. 

property  to  another  person,  who  repaired  and  improved  it, 
and  paid  taxes  and  insurance  on  it. 

The  contractor  to  sell  was  sued  by  the  other  party  to  the 
contract  for  specific  performance.  The  wife  of  the  latter  was 
declared  to  be  entitled  to  the  conveyance  on  payment  of  the 
balance  of  the  price,  and  on  reimbursing  the  person  who  had 
paid  taxes  in  the  sum  thus  expended.  Her  homestead  right 
was  held  paramount  to  the  advances  made  to  her  husband  by 
the  contractor  to  sell,  for  the  purpose  of  erecting  the  dwell- 
ing-house ;  and  also  to  the  sums  expended  by  the  person  to 
whom  the  deed  had  been  given,  in  making  repairs.^ 

Two  joint  purchasers  of  land  paid  for  it  in  part  —  one  pay- 
ing more  than  the  other.  The  one  who  had  paid  the  more, 
died:  the  other  administered  on  his  estate,  caused  it  to  be  re- 
sold with  titles  withheld  till  full  payment  of  the  price  and  the 
land  to  stand  pledged  for  such  payment.  One-half  the  price 
was  to  be  paid  to  the  heirs  of  the  deceased  and  the  other 
half  to  the  administrator:  the  original  joint  purchasers.  The 
administrator  became  the  purchaser  of  the  land.  He  was 
found  indebted  to  the  estate  on  account  of  the  interest  of  the  de- 
ceased in  the  land,  and  also  for  rents  and  profits  accruing  before 
the  resale.  He  was  held  not  entitled  to  homestead  as  against 
his  indebtedness.  The  money  owing  by  him  was  purchase- 
money  payable  to  the  distributees  of  the  estate  of  the  deceased.^ 

Co-purchasers,  becoming  tenants  in  common,  acquire  no 
right  of  homestead  which  can  be  interposed  by  one  against 
the  other  who  claims  for  excess  of  his  part  paid  on  a  mort- 
gage to  secure  the  purchase-money.' 

No  homestead  right  is  acquired  by  a  purchaser  who  takes 
a  deed  against  a  lien  (reserved  in  the  deed  which  he  takes),  to 
secure  the  payment  of  a  stated  sum  of  money  though  not 
purchase-money,  technically  speaking.  He  obtains  the  prop- 
erty with  its  liability  for  the  lien.* 

Land  not  paid  for  cannot  even  be  applied  to  the  payment 
of  funeral  expenses  to  the  displacement  of  the  vendor's  lien.'^ 

1  Chopin    V.  Runte,   75  Wis.   361 ;        5  Robertson  v.   Paul,  16  Tex.   472. 

McWilliams  v.  Bones,  84  Ga.  203.  See  Phelps  v.  Porter,  40  Ga.  485,  on 

■^  Edwards  v.  Edwards,  14  S.  C.  11.  application  of  personalty,  unpaid  for, 

3  Newbold  V.  Smart,  67  Ala.  326.  to   the  support  of  widow  and  chil- 

■•  Berry  v.  Boggess,  62  Tex.  239,  See  dren. 
Clay  brooks  v.  Kelly,  61  Tex.  634 


PRICE    RETURNED    WHEN    TITLE    PAILS.  357 

A  vendee  in  possession  under  warranty  cannot  defend  against 
the  payment  of  the  purchase-money  either  in  equity  or  at  law 
while  he  retains  possession,  except  on  the  ground  of  fraud  or 
the  inability  of  the  vendor  to  respond  to  his  covenants  by 
reason  of  his  insolvency.^  And  when  the  deed  shows  on  its 
face  that  the  purchase-money  has  not  been  paid,  a  sub-vendee 
is  charged  with  notice,  and  is  not  an  innocent  purchaser.^ 

A  judgment  in  a  suit  for  the  recovery  of  purchase-money 
ought  to  show  that  it  was  rendered  on  that  kind  of  claim ;  but, 
when  it  does  not  show  this,  the  purchaser  of  a  homestead, 
sold  under  the  judgment,  may  establish  that  fact  by  extrinsic 
evidence  w^hen  his  title  is  attacked  on  the  ground  that  the 
property  was  exempt.^ 

§  9.  Price  Returned  when  Title  Fails. 

In  a  suit  for  purchase-money,  the  plaintiff  cannot  recover 
when  he  has  given  no  title  to  the  purchaser.  Though  the  de- 
fendant may  be  the  owner  by  title  subsequently  obtained  of 
one  w^ho  could  rightfully  convey,  he  will  not  be  bound  by  his 
contract  w^ith  one  who  had  no  such  right,  and  any  form  of 
lien  held  by  the  latter  will  prove  abortive.^  The  purchaser 
getting  no  title,  his  wife  can  claim  no  homestead  in  property 
which  he  does  not  own  and  to  which  she  claims  no  title  in  her 
own  right.^ 

The  purchaser  of  a  homestead  w^ho  obtains  no  title  is  en- 
titled to  have  his  money  back,  with  interest.^  It  was  said, 
perhaps  unnecessarily,  in  the  beginning  of  this  chapter,  that 
he  cannot  have  both  the  property  and  its  purchase-money ; 
but  he  can  have  one.  If  his  title  fails,  why  should  he  not 
have  his  money  back,  which  he  has  paid  out  for  nothing? 

A  purchaser,  evicted  by  the  holder  of  a  paramount  title, 
becomes  a  creditor  of  his  grantor  to  the  amount  of  the  price 

1  Thompson  v.  Sheppard,  85  Ala.  ony,  29  111.  532 ;  Freeman  on  Judg- 
611,  619;  Woodall  v.   Kelly,  85   Ala.     ments,  180. 

368:  Strong  v.  Waddell,  56  Ala.  471 ;  *  Farmer  v.  Word,  72  Ga.  16. 

Garner  v,  Leverett,  32  Ala.  410.  ^Snodgrass  v.  Parks,  79  Cal.  55. 

2  Witter  V.  Dudley,  42  Ala.  616.  e  ciine  v.  Upton,  59  Tex.  27 ;  Burns 

3  Durham  v.  Bostwick,  72  N.  C.  356  :  v.  Ledbetter.  56  Tex.  286 ;  Stone  v. 
People  V.  Stahl,  101  111.  346;  White  v.  Darnell,  25  Tex.  Sup.  435;  Andrews 
Clark,  36  III  285 ;  Stevenson  v.  Mar-  v.  Richardson,  21  Tex.  287 ;  Howard 

V.  North,  5  Tex.  316. 


358  LIABILITY    FOB    PUECHASE-MONEY,  ETC. 

paid.  He  has  been  a  creditor  from  the  date  of  the  payment, 
though  the  fact  has  not  appeared  till  his  eviction. 

The  grantor's  widow  cannot  interpose  her  homestead  right 
in  the  property  thus  abortively  sought  to  be  sold  by  her  late 
husband,  against  an  execution  issued  by  the  plaintiff  on  a 
judgment  giving  him  back  his  money,  because  of  breach  of 
warranty.  She  might  claim  homestead  in  the  land,  if  her 
right  was  accorded  by  an  existing  statute  and  she  had  not 
joined  in  the  deed,  and  her  husband  really  owned  but  did  not 
legally  convey.  But  if  her  right  arose  after  the  sale  (though 
before  the  eviction  of  the  vendee),  by  the  passage  of  a  statute 
creating  it  in  the  interval  between  those  two  events,  it  is  held 
that  she  cannot  interpose  her  claim  against  the  plaintiff  re- 
covering the  price  on  breach  of  warranty.^ 

The  vendee  is  as  much  entitled  to  have  his  money  back 
when  he  has  bought  at  judicial  sale  provoked  hy  the  vendor  as 
owner,  as  \vhen  he  has  bought  at  private  sale.  Whatever  \\\q 
transaction,  if  the  court  is  a  mere  agent,  the  duty  of  war- 
ranty is  not  affected  by  the  fact  that  the  sale  is  judicial  in 
form. 

Of  the  court  as  an  agent,  the  following  extract  is  illustra- 
tive :  "  Reliance  seems  to  be  placed  on  the  fact  that  the  sale 
of  the  land  was  made  by  the  master  "  [in  chancery].  .  .  . 
"  The  court  acquired  jurisdiction  to  order  a  sale  of  the  land 
by  virtue  of  the  contract  entered  into  between  the  complain- 
ant and  defendant  to  the  suit  in  the  original  trade.  The  court 
and  its  officer,  the  master,  were  therefore  the  agents  of  the 
sendee,  the  owner  of  the  land — as  much  so  in  reality,  though 
not  in  form,  as  if  he  had  executed  to  them  a  regular  power 
of  attorney  to  sell,  and  to  appropriate  the  proceeds  in  con- 
formity with  the  contract.  He  was  entitled  to  the  surplus 
proceeds  of  sale  after  satisfying  the  debt  of  his  vendor  and 
the  costs  of  suit.  If  the  master,  after  entering  all  proper 
credits  on  the  notes  given  to  him,  had,  under  order  of  the 
court,  transferred  the  notes  to  the  defendant,  there  could  not 
have  been  a  doubt  that  the  unpaid  balance  would  have  been 
a  '  debt  or  liability  contracted  for  the  purchase '  of  the  land.'"' 

>  Corr  V.  Shackelford,  68  Ala.  241 ;  v.  Burnett,  56  Ala.  340 ;  Wilson  v. 
Bibb  V.  Freeman,  59  Ala.  612 ;  Watts    Brown,  58  Ala.  62. 

2  Bentley  v.  Jordan,  3  Lea,  353,  359. 


INSURANCE    AND    VOIDABLE   TITLE.  359 

To  avoid  a  deed  for  a  homestead,  the  party  praying  for  the 
rescission  of  the  contract  must  return  the  price  or  considera- 
tion received,  according  to  the  rule  of  equity.' 

§  10.  Insurance  and  Voidable  Title. 

A  stranger  to  a  contract  cannot  impeach  the  transaction 
because  of  its  effect  on  the  homestead,  resulting  in  a  mort- 
gage upon  it  prohibited  by  the  law  of  the  place  of  con- 
tract. This  was  laid  down  in  a  case  presenting  the  following 
facts:  The  occupant  of  a  building,  which  was  claimed  as  ex- 
empt, conveyed  it  to  a  firm,  to  pay  debt,  who  reconveyed 
to  him  on  the  same  day,  and  took  his  notes  therefor  and  held 
the  vendor's  lien.  He  insured  the  property  and  transferred 
the  policy  to  the  firm.  The  building  was  burned,  and  a  trans- 
feree of  the  notes  and  policy  sued  the  insurance  company  for 
the  loss. 

The  company  pleaded  in  defense  that  the  transaction  be- 
tween the  insuring  occupant  and  the  firm  was  void  under  the 
homestead  laws  of  the  state  where  it  took  place ;  that  the 
notes  given  by  him,  with  security  in  the  nature  of  a  mortgage, 
gave  no  rights  against  the  homestead  or  exempt  business 
place ;  and  that  the  plaintiff  (the  transferee  of  the  notes  and 
policy)  had  not  derived  them  from  a  holder  having  any  insur- 
able interest.^     The  court  said  the  transaction  was  not  abso- 

1  Pearson  v.  Cox,  71  Tex.  246.  improvements  made  tliereon,  ashere- 

2  The  transaction  was  had  in  Texas,  inbefore  provided,  whetlier  such 
Tlie  constitution  of  thatstate  provides  mortgage,  or  trust  deed  or  other  lien, 
(sec.  50)  that  the  homestead  of  a  f  am-  shall  have  been  created  by  the  hus- 
ily  shall  be  protected  from  forced  band  alone,  or  together  with  his  wife: 
sale  for  debts  except  for  purchase-  and  all  pretended  sales  of  the  home- 
money,  taxes,  work  done  and  mate-  stead,  involving  any  conditions  of  de- 
rial  used  for  improvementscontiacted  feasance,  shall  be  void."  Section  51 
for  in  writing,  tcith  the  consent  of  the  limits  the  country  homestead  to  two 
loife  given  as  required  in  a  convey-  hundred  acres  and  improvements, 
ance  of  the  homestead.  "  Nor  shall  and  the  urban  to  a  lot  or  lots  worth 
the  owner,  if  a  married  man,  sell  the  no  more  than  five  thousand  dollars, 
homestead  without  the  consent  of  and  improvements  irrespective  of 
his  wife  given  in  such  manner  as  value.  Either  species  must  be  used 
may  be  prescribed  by  law.  No  mort-  for  residence  or  business  by  the  head 
gage,  trust  deed  or  other  lieu  on  the  of  a  family.  Temporary  renting  is 
homestead  shall  ever  be  valid  except  permitted,  if  no  other  homestead  has 
for  the  purchase-money  therefor,  or  been  acquired. 


LIABILITY    FOR    PURCHASE-MONEY,  ETC. 

lutely  void.  It  would  hold  till  questioned  by  some  one  having 
the  right  to  question  it.  The  insurance  company  was  a 
stranger  to  it  and  could  not  successfully  assail  it.  As  be- 
tween the  parties  to  it,  the  notes  were  valid  and  the  security 
attached  to  such  interest  or  estate  in  the  property  as  was 
conveyed  to  the  firm.  The  deed  or  mortgage  given  by  the 
homestead  occupant  to  secure  his  notes  to  the  firm  "  would 
be  effective  in  several  contingencies  to  pass  some  sort  of  sub- 
stantial interest  in  the  insured  pi'operty  itself,  under  the  de- 
cisions of  that  state,"  the  court  said.' 

The  actual  form  which  the  security  for  the  notes  took  from 
the  written  instruments  between  the  maker  and  the  first  holder 
(the  firm)  was  that  of  securing  a  vendor's  lien  for  purchase- 
money,  the  court  said.  The  conclusion  was  that  the  plaintiff, 
as  the  transferee  of  the  notes  and  security  and  policy,  repre- 
sented such  an  insurable  interest  as  would  support  a  recovery 
for  the  loss  by  fire.^ 

Had  the  wife  of  the  homestead  holder  attacked  his  convey- 
ance of  it  to  the  firm,  she  would  have  had  no  difficulty  in  hav- 
ing it  declared  void  under  the  section  above  cited.  Indeed, 
the  terms  of  that  section  are  so  broad  an  inhibition  of  sale 
without  her  joinder  that  it  would  seem  a  contravention  of  the 
policy  of  the  law  to  conserve  homes  if  we  allow  sole  sale  by 
him  to  be  merely  voidable  under  any  circumstances,  when 
purchase-money,  or  some  other  exceptional  matter,  is  not  in- 
volved. It  was  not  involved  in  the  conveyance  to  the  firm. 
M  the  firm  acquired  title  in  any  way;  if,  for  instance,  the 
homestead  character  did  not  exist  at  the  date  of  this  first  sale, 
then  it  is  quite  clear  that  purchase-money  figures  quite  prom- 
inently in  the  reconveyance.  The  notes,  taken  by  the  firm 
and  secured  to  them,  were  purchase-money  notes,  and  the 
court's  conclusion  seems  unanswerable. 

The  firm's  possession  of  the  policy  was  rightful,  by  the 
terms  of  the  agreement  —  they  being  appointed  to  receive  tlie 
proceeds.* 

t  Citing  Jordan  v.  Godman,  19  Tex.  2  Parks  v.  Hartford  Ins.  Co.  iOO 
273  5    Sears  v.   Sears.   45    Tex.   557 ;     Mo.  873,  380. 

Reece  v.  Renfro,  68  Tex.  192 ;  McEl-        3  Franklin  v.  Ins.  Co.,  43  Mo.  4iiU. 
toy  V.  McGriffiu,  68  Tex.  208;  Irion 
V.  Mills,  41  Tex.  3ia 


IMPROVEMENTS.  '  361 

§  11.  Improvements. 

Most  of  the  homestead  statutes  couple  improvements  with 
purchase-money,  and  except  debts  created  thereby  from  the 
operation  of  exemption.  Improvements,  as  the  word  is  used 
in  those  laws,  embrace  the  erection  of  dwelling-houses  and 
appurtenant  buildings,  their  betterment  and  repair,  and  what- 
ever is  made  a  fixture  of  the  homestead.^  It  is  quite  common 
to  include  material  furnished  and  labor  done,  in  building  or 
preserving  home  structures,  in  the  general  terra,  hnprove- 
vients.  Shades  of  difference  appear  when  comparing  the  stat- 
utes, but  the  general  rule  is  that  legally  created  claims  for 
anything  wrought  or  contributed  to  make  the  home  or  en- 
hance its  value  shall  be  collectible  from  the  owner,  even  to 
the  execution  of  judgment  against  his  homestead. 

The  rule  is  certainly  just.  There  is  no  more  reason  for 
exempting  a  dwelling-house  and  its  additions  and  auxiliary 
structures  from  such  claims  than  there  is  for  exempting  the 
land  on  which  they  stand  from  the  payment  of  its  price.  It 
would  be  unconscionable,  in  either  case,  to  let  the  occupant 
have  the  property  for  nothing;  to  give  him  a  homestead  at 
the  expense  of  the  grantor  and  constructor. 

The  dwelling  and  appurtenances  upon  real  estate  at  the 
time  of  its  purchase,  constituting  a  part  of  it,  are  not  to  be 
separately  considered  here  under  the  caption  of  this  section, 
since  the  unpaid  price  for  the  whole  has  been  already  treated 
as  purchase-money.  If  the  vendor  of  the  buildings  and  the 
grantor  of  the  land  w^ere  different  persons,  the  iQvm.  jmrchase- 
money  would  be  applicable  to  the  price  due  to  either. 

Most  of  the  states  provide  that  the  mechanic,  laborer  and 
material-furnisher  shall  have  a  lien  upon  the  homestead  for 
their  contributions  to  it,  or  provide  for  their  creation  of  a  lien 
or  privilege.  Even  clerical  and  domestic  service,  rendered  on 
the  homestead,  is  privileged  in  a  few  states;  and,  in  several,  it 
is  so,  with  respect  to  personal  property  Liens  upon  crops  of 
the  homestead  farm,  for  utensils,  fertilizers,  plantation  sup- 
plies, money  advanced  to  make  the  crop,  and  the  like,  created 
by  contract  authorized  by  statute,  have  been  likened  to  that 
for  purchase-money.- 

1  Greenwood  v.   Maddox,  27  Ark.        2  xif t  v.  Newsom,  44  Ga  600. 
660. 


3G2  LIABILITY    FOR    PURCHASE-MONEY,  ETC. 

Statutory  requisites,  for  the  creation  of  the  mechanic's,  la- 
borer's or  furnisher's  lien,  must  be  observed.  As  exceptions 
to  exemption,  they  have  been  construed  strictly;  so  that, 
while  debts  contracted  for  the  erection  of  buildings  and  for 
labor  done  in  the  dwelling-house  and  in  the  field  were  held  to 
be  within  the  exceptions,  a  different  view  was  taken  of  work 
done  to  improve  the  land  and  of  money  advanced  for  that 
purpose.  The  debts  contracted  for  the  labor  and  loan  for  that 
purpose  were  not  privileged  by  the  statute.' 

Material  and  labor  furnished  for  putting  up  the  home  build- 
ings, in  good  faith,  are  not  secured  by  a  lien  in  equity  where 
there  is  none  by  law.^  And  if  a  legal  lien  may  be  created  by 
contract  so  as  to  bear  upon  the  homestead,  married  benefici- 
aries of  exem])tion  must  join  in  the  creation."  So,  where  there 
is  no  lien  against  the  homestead,  by  law,  for  supplies  furnished, 
the  debt  created  is  merely  personal  of  the  obligor.  Though 
the  head  of  a  family,  for  suppHes  furnished  to  it,  has  a  judg- 
ment rendered  against  him,  it  is  not  a  lien  on  the  homestead.* 

But  it  does  not  follow  from  the  lack  of  lien,  that  the  home- 
stead would  not  be  liable  for  such  debts  when  prosecuted  to 
judgment.  Exemption  does  not  cut  off  all  ordinary  debts  but 
only  those  rendered  non-collectible  against  it,  by  statute. 

A  promissory  note,  given  for  building  material  worked  up  in 
a  homestead  house,  was  prosecuted  to  judgment,  with  its  con- 
sideration stated  in  the  finding  of  the  court.  The  homestead 
was  liable  under  the  judgment,  in  the  absence  of  liable 
chattels.^ 

1  Lewton  v.   Hower,    18  Fla.   872,  of  the  constitution  of  that  state,  made 

883.  in  Lyon  v.  Ozee,  66  Tex.  95.     Com- 

2Chapin  v,    Runte,   75   Wis.   369;  pare  Taylor  v.  Huck,  65  Tex.  238. 

Spear  v.  Evans,  51  Wis.  42 ;  Campbell  See  Gaylord  v.  Loughbridge,  50  Tex. 

T.  Babcock,  27  Wis.  512;    Smith  v.  573;  Eckhardt  v.  Schlecht,  29  Tex. 

Lackor,  23  Minn.  454;    Coleman  v.  130. 

Ballandi,    22    Minn.    144;    Cogel  v.  <  Daniel  v.  Bush,  80  Ga.  218.     See 

Mickovv,   11  Minn.  478;  Ellerman  v.  Williugham  v.  Maynard,  59  Ga,  330; 

Wurz  (Tex.),  14  S.  W.  333.  Delavan  v.  Pratt,  19  la.  429. 

*  In  Texas,  to  hold  a  homestead  for  ^  Tyler    v.  Johnson  (Kan.),   28  P. 

material  furnished  with  consent  of  198.  Green,  C,  after  stating  the  facts: 

the  wife  of  the  homestead  holder,  it  "  It  is  claimed  that  the  finding  of  the 

must  be  shown  that  she  consented  court  that  the  indebtedness  for  which 

before  the  purchase,  according  to  the  the  note  was  given  was.  for  lumber 

construction  of  article  10,  section  50,  and  matei-ial  furnished  by  Tyler  and 


IMPKOVEMKNTS. 


363 


The  vendor  of  personal  property  contracted  with  the  vendee 
that  the  ownership  and  possession  of  it  should  remain  in  him 
till  payment.  The  vendee  affixed  it  to  his  realty.  The  prop- 
erty consisted  of  a  windmill  and  a  wheel  and  chain.  The  con- 
tract was  sued  upon,  and  the  defense  was  that  the  chattels 
had  become  fixtures  of  the  homestead,  and  were  exempt. 
They  were  regarded  by  the  court  as  personal  property,  as  be- 
tween the  plaintiff  and  defendant,  by  virtue  of  their  contract, 
though  they  may  have  become  part  of  the  realty,  as  to  oth- 
ers. The  court  say  (in  the  syllabus  prepared  by  one  of  them, 
the  organ) :  "  In  the  sale  of  personal  property  that  is  to  be 
affixed  to  realty,  the  contracting  parties  at  the  time  of  the 
sale  have  the  power,  as  between  themselves  at  least,  to  fix  the 


used  by  Hamill  in  the  erection  of  a 
dwelling-house,  on  the  premises  in 
question  while  he  was  still  the  owner, 
and  the  judgment  entered  upon  such 
finding,  constituted  a  lien  upon  the 
propeity  of  Hamill.  whether  a  home- 
stead or  not ;  that  for  that  particular 
debt  there  was  no  homestead  exemp- 
tion. This  question  involves  the 
construction  of  section  9  of  article  15 
of  the  constitution.  Section  9  pro- 
vides for  the  exemption  of  one  hun- 
dred and  sixty  acres  of  farming  land, 
or  one  acre  within  the  limits  of  an 
incorporated  city,  occupied  as  a  resi- 
dence by  the  family ;  'but  no  property 
shall  be  exempt  from  sale  for  taxes, 
or  for  the  payment  of  obligations 
contracted  for  the  purchase  of  said 
premises,  or  for  the  erection  of  im- 
provements thereon.'  The  plain  read- 
ing of  this  clause  of  the  constitution 
is  that  there  shall  be  no  exemption 
for  the  pui'chase-price  of  land  or  for 
improvements  erected  thereon.  The 
court  in  this  case  found  that  the  debt 
for  which  judgment  was  given  was 
for  improvements.  This  finding  was 
conclusive  as  the  finding  of  the 
amount  due.  Reed  v.  Umbarger,  11 
Kan.  207.  This  court  has  said,  in  a 
case  where  there  was  a  judgment 
upon  several  promissory  notes  given 


for  the  purchase-price  of  land,  that 
the  judgment  should  be  an  ordinary 
personal  judgment  against  the  de- 
fendant for  the  amount  of  the  note 
and  costs,  authorizing  an  ordmary 
execution  to  be  issued  against  the 
property  in  general  of  the  judgment 
debtor,  subject  to  execution  :  and  on 
such  an  execution,  the  officer,  after 
exhausting  the  personal  property  of 
the  judgment  debtor  subject  to  exe- 
cution, might  levy  on  such  real  es- 
tate (or  on  any  other  real  estate  of 
the  judgment  debtor  subject  to  exe- 
cution), whether  the  real  estate  first 
mentioned  was  occupied  as  a  home- 
stead or  not.  Greeno  v.  Barnard,  18 
Kan.  578.  In  construing  this  same 
clause  of  the  constitution  with  refer- 
ence to  obligations  contracted  for 
the  purchase-price  of  the  homestead 
it  has  been  said  :  '  There  is  no  home- 
stead exemption  law  as  against  obli- 
gations contracted  for  the  purchase- 
money.  As  to  such  obligations,  the 
rule  is  just  the  same  as  if  no  exemp- 
tion law  had  ever  been  adopted.  And 
land  held  as  a  homestead  is,  with 
respect  to  such  obligations,  governed 
by  just  the  same  rules  as  if  it  were 
not  a  homestead.'  Nichols  v.  Over- 
acker,  16  Kan.  54."  Compare  Steen- 
bergen  v.  Gowdy  (Ky.),  19  S.  W.  186. 


364  LIABILITY    FOR    PURCHASE-MONET,  ETC. 

status  of  such  property  and  say  whether,  when  affixed  to 
the  realty  of  the  vendee,  it  shall  remain  personal  property  or 
become  a  part  of  the  realty."  ^  It  seems  certain  enough  that 
parties,  by  their  conventions,  cannot  determine  whether  things 
shall  be  real  or  personal  so  as  to  conclude  anybody  but  them- 
selves and  their  privies. 

The  court  concluded:  "  If  said  property  did  not  constitute 
an  improvement  upon  the  realty,  the  homestead  would  be  ex- 
empt from  the  payment  of  the  debt  contracted  therefor,  and 
the  sale  of  the  homestead  to  satisfy  such  debt  should  be  en- 
joined." 2 

Where  the  mechanic's  lien,  not  expressly  mentioned  among 
the  exceptions  to  debts  cut  off  by  exemption,  was  claimed  to 
be  included  under  the  provision  excepting  lawful  mortgages, 
such  alien  was  found  fatally  defective  for  want  of  description 
of  the  property  on  which  it  w^as  claimed  to  rest.  There  was 
a  written  list  descriptive  of  the  dwelling-house,  the  materials 
used,  the  style  of  architecture,  the  quality  of  the  work  and 
the  compensation  to  be  paid,  signed  by  both  the  contesting 
parties;  but,  distinctly  because  the  locus  of  the  structure  had 
not  been  set  out  by  metes  and  bounds,  nor  by  an}'  way  that 
would  exclusively  identify  it,  there  was  held  to  be  no  com- 
pliance with  the  law,  and  the  claim  against  the  homestead 
failed.' 

The  law  may  regulate  the  rank  of  liens ;  and  it  has  been 
thought  that  the  legislator  may  authorize  the  marshaling  of 
the  mechanic's,  laborer's  and  material-man's  liens  above  prior 
mortgages.*  This  may  be  right  to  a  limited  extent.  The 
1  ibor,  skill  or  material  put  upon  mortgaged  property  aug- 
ments the  security  of  the  mortgage  debt.  But  if  the  subse- 
quent lien  is  so  great  as  to  cover  the  value  of  the  mortgaged 

1  Marshall  v.  Bacheklor  (Kan.),  28  agent  for  buying  a  water  wheel  to  be 
P.  168,  Strang,  C,  citing  Fortman  attached  to  the  homestead  property 
V.  Geopper,  14  O.  St  558 ;  1  Benj.  on  as  au  improvement  All  v.  Goodson, 
Sales,  §  425 ;  Tied.  Sales,  ^§  83,  85.  33  S.    C.   229.     See  Phelps  v.   Shay 

2  lb.;  citing  Eaves  v.  Estes,  10  Kan.  (Neb.),  48  N.  W.  896. 

314 ;  Railroad  Co.  v.  Morgan,  42  Kan.  ^  Hammond  v.  Wells,  45  Mich.  11 ; 

23 ;    Ford  v.    Cobb,   20    N.   Y.   344 ;  Const  Mich.,  art  XVI,  §  2. 

Holmes  v.   Treuiper,   20  Johns.    29.  ^  Nortli  Pres.  Church  v.  Jevne,  32 

In  South  Carolina,  a  homestead  was  111.  214 ;  S.  C,  83  Am.  Dec.  261 ;  Cros- 

held  liable  for  the  commissions  of  an  key  v.  Northwestern  Co.,  48  III  481. 


IMPROVEMENTS. 


365 


property  (thus  rendering  the  mortgage  worthless  if  given  a 
second  place),  the  legislator  cannot  give  it  such  lower  rank 
without  divesting  the  vested  right  of  the  mortgagee. 

The  recognition  of  the  laborer's  and  mechanic's  lien  on  the 
homestead,  by  constitutional  or  statutory  provision,  does  not 
include  the  lien  for  material  furnished.  The  maxim,  Expressio 
unius  exclusio  alterius,  is  held  applicable.^ 

If  the  statute  does  include  the  material-man's  claim  and 
renders  it  susceptible  of  becoming  a  lien,  all  requirements 
must  be  observed.  Otherwise  notes  given  for  material  fur- 
nished for  the  erection  of  improvements  on  the  homestead 
cannot  be  enforced  as  a  lien,  and  the  property  may  be  sold 
clear  of  incumbrance,^  by  the  owner,  or  by  him  and  his  wife, 
if  he  has  one,  where  the  la^y  requires  the  joinder  of  both  in 
alienation. 

Though  requirements  as  to  form  and  record  of  mechanic's 
and  other  liens  must  be  observed  by  the  lienholder,  he  is  not 
responsible  for  the  neglect  of  officers  when  he  has  complied 
with  the  law  on  his  part.^ 


1  Gumming  v.  Bloodworth,  87  N.  C. 
83,  declaring  the  act  of  1869-70  (Bat. 
Rev.,  ch.  65)  to  be  in  conflict  with 
Const.,  art.  10,  §g  3,  4,  which  gives  to 
every  resident  of  the  state  who  owns 
and  occupies  land,  a  homestead  not 
exceeding  $1,000  in  value,  exempt 
from  debt  except  for  taxes,  purchase- 
money,  and  liens  of  laborers  and  me- 
chanics. 

2  Dean  v.  McAdams,  23  Kas.  544. 
See  Murray  v.  Rapley,  30  Ark.  568. 

3  In  Minnesota,  the  mechanic's 
claim  is  no  lien  on  the  homestead  till 
a  statement  of  it  has  been  duly  filed. 
Meyer  v.  Berlandi,  39  Minn.  438; 
Rugg  V.  Hoover,  38  Minn.  404.  If 
filed  against  more  land  than  is  sub- 
ject to  it,  the  lien  is  not  vitiated. 
Smith  V.  Headley,  33  Minn.  384  ;  North 
Star  Works  v.  Strong,  33  Minn.  1. 
See  Tuttle  v.  Howe,  14  Minn.  145. 
Nor  is  its  legality  affected  by  the 
failure  of  the  officer  to  record  it.  Ih.; 
Gorham  v.  Summers,  25   Minn.   81. 


Tlie  record  must  show  on  its  face 
that  the  claimant  is  entitled  to  the 
lien.  Clark  v.  Schatz,  24  Minn.  300; 
Kellar  v.  Houlihan,  33  Minn.  4S6.  In 
Kentucky  the  mechanic's  lien  on  the 
homestead,  for  repairs  or  additional 
improvements  of  the  dwelling,  must 
be  written  and  recorded,  and  signed 
by  the  wife  as  well  as  himself  if  the 
householder  is  married.  Otherwise 
for  constructing  the  homestead  build- 
ing originally.  Roberts  v.  Riggs,  84 
Ky.  251.  If  the  owner  is  a  married 
woman,  the  mechanic,  to  make  his 
lien  hold  good,  must  aver  that  the  im- 
provements were  for  the  benefit  and 
comfort  of  herself  and  family,  and 
were  necessary.  lb.;  Pell  v.  Cole,  3  Met. 
(Ky.)  353  ;  Harris  v.  Dale,  5  Bush,  61 ; 
Gate  wood  v.  Bryan,  7  Bush,  509 :  Gen. 
Ky.  Stat,  ch.  53,  art  2,  §  2.  In  Texas 
a  mechanic's  lien  must  be  recorded 
within  six  months.  Without  record, 
it  is  nugatory.  Cameron  v.  Marshall, 
65  Tex.  7 ;  Tex.  Rev.  Stat  3165,  3174. 


3G6  LIABILITY    FOR    PURCHASE-MONEY,   ETC. 

AVhere  claim  for  labor  clone  on  the  homestead  for  its  im- 
provement is  excepted  from  exemption,  is  a  lawyer's  services 
in  defendinor  the  homestead  to  be  classed  with  such  labor?  *  It 
is  reasoned,  in  the  affirmative,  that  if  the  law^^er  could  not 
hold  the  homestead  liable,  he  would  not  give  his  services,  and 
that  his  professional  aid  is  "  in  the  nature  of  labor  done  and 
purchase-money  thereon."-  It  might  be  as  plausibly  argued 
that  a  doctor  would  not  attend  the  family  of  a  householder 
unless  he  could  hold  the  homestead  responsible  for  his  bill,  and 
therefore  he  is  to  be  considered  as  a  laborer  on  the  premises, 
entitled  to  recover  from  them.^ 

A  widow  who  had  a  life  estate  of  homestead  married  a 
second  husband,  who  erected  improvements.  At  her  death 
he  was  allowed  compensation  for  them.*  But  a  purchaser  at 
sheriff's  sale,  w^hen  ejected  from  their  homestead  by  the  widow 
and  minor  children  of  the  late  owner,  was  denied  compensa- 
tion for  the  improvements  he  had  made.^ 

As  against  a  judgment  for  improvements  put  upon  land  by 
one  to  whom  they  equitably  belong,  one  claiming  homestead 
in  the  improved  property  cannot  have  it ;  it  is  not  free  from 
the  lien  of  the  judgment."  But  it  has  been  held  that  the  bur- 
den of  proof  is  upon  tlie  purchaser  of  a  homestead,  sold  under 
a  mechanic  lien,  to  show  that  he  is  within  the  law  after  the 
householding  debtor  has  set  up  his  exemption.     He  may  show 

Homesteads  in  California  were  liable  tion.     Pope  v.  Graham,  44  Tex.  198; 

on  judgments  for  debts  secured  by  Potshuisky   v.    Krempkan,   26  Tex. 

mechauicsMaborers' or  vendors"  liens  309;  Tuttle  v.  Howe,  14  Minn.  145. 
upon  the  premises,  prior  to  March  9,        '  Yes,  accordmg  to  Strohecker  v. 

1887.     Walsh  v.  McMenomy,  74  Cal.  Irvine,  76  Ga.  639.     Compare  Collier 

356.     See  Richards  v.  Shear,  70  Cal.  v.  Simpson,  74  Ga.  697,  and  Ross  v. 

187.   In  California,  by  the  act  of  1887,  "Worsham,  65  Ga.  624. 
homesteads  are  liable  on  mechanics'        ^  Hy^ 

liens  for  work  and  material  in  build-        ^  Medical  bills  are  privileged  by  the 

ing  and  repairing  them.     The  lien  is  Georgia  Code  agamst  homesteads, 
good,  though  iiled  after  the  declara-        *  Bond  v.  Hill,  37  Tex.  626. 
tion  of  homestead,   if  the  material        *  Andrews  v.  Melton,  51  Ala.  400. 
was  furnished  before.     Lumber  Co.        «  Barker  v.   Owen,   93  N.  C.  198; 

V.  Gottschalk,  81  Cal.  641.  So,  in  Ken-  Wharton  v.    Moore,   84   N.    C.   479; 

tucky,  a  homestead   is  not  exempt  Justice  v,  Baxter,  93  N.  C.  405.     See 

from    payment    for    improvements  Saunders  v.  Wilson,  19  Tex.  194,  and 

made  before  it  was  set  apart  as  a  M'Coy   v.  Grandy,  3   Ohio  St  463; 

homestead.     Fish    v.   Hunt,   81   Ky.  Moseley   v.  Bevins  (Ky.),   15  S.   W. 

584.     Nor  in  the  other  states,  where  527,  overruling  Griffin  v.  Proctor,  14 

the  lien  had  attached  before  dedica-  Bush,  571. 


IMPROVEMENTS. 


3G7 


by  the  record  or  by  recital  in  the  judgment  that  the  lien  had 
been  dul}^  filed,  but  the  recital  of  such  fact  in  the  writ  has 
been  held  insufficient.^ 


1  McMillan  v.  Parker  (N.  C),  13 
S.  E.  764.  Avery,  J.:  "The  record 
of  a  judgment,  execution,  levy,  and 
sale  of  a  tract  of  land  as  the  prop- 
erty of  a  defendant  in  an  action  for 
possession,  the  sheriff's  deed  to  the 
plaintiff,  or  to  one  with  whom  the 
plaintiff  connects  himself,  by  mesne 
conveyances,  together  with  evidence 
or  admission  of  the  identity  of  the 
land  conveyed  by  the  sheriff  with 
that  declared  for  in  the  complaint, 
and  of  the  actual  possession  of  some 
portion  of  said  land  by  the  defend- 
ant when  the  action  was  brought, 
will,  nothing  more  appearing,  con- 
stitute a  iwima  facie  proof  of  title 
in  the  plaintiff.  Mobley  v.  Griffin, 
104  N.  C.  112 ;  10  S.  E.  Rep.  142.  But 
where  it  is  admitted,  as  in  this  case, 
that  the  sale  under  the  execution  was 
made  to  satisfy  a  debt  contracted 
since  the  homestead  provision  of  the 
constitution  became  operative,  and 
without  assigning  a  homestead  to  the 
defendant  in  execution,  when  he  did 
not  hold  one  under  a  previous  allot- 
ment, the  burden  of  proof  is  shifted, 
and  the  onus  is  on  the  plaintiff  to 
show  the  liability  of  the  land  to  be 
sold  to  satisfy  the  debt.  Mobley  v. 
Griffin,  supra;  Long  v.  Walker,  105 
N.  C.  90;  10  S.  E.  Rep.  858;  Mc- 
Cracken  v.  Adler,  98  N.  C.  400 ;  4  S.  E. 
Rep.  138.  The  plaintiffs  in  this  case 
have  taken  up  this  burden,  and  at- 
tempted to  bring  themselves  within 
the  exception  (contained  in  article 
10,  section  4,  of  the  constitution,  and 
provided  for  in  chapter  41  of  the 
Code),  by  showing  that  the  sale  was 
made  to  satisfy  a  subsisting  mechan- 
ic's lien  upon  the  land.  They  of- 
fered the  record  of  the  action  before 
the  justice  of  the  peace,  from  which 


it  appeared  that  the  plaintiffs  com- 
plained for  'an  account  for  labor 
done  in  November,  December  and 
January  in  the  years  1887  and  1888 
to  the  amount  of  $128.88.'  The  judg- 
ment was  entered  on  the  judgment 
docket  in  the  following  form,  after 
entitling  the  case :  '  Judgment  by 
confession  in  J.  P.  cf)urt  of  Har- 
nett county  on  the  13th  of  July, 
1888,  in  favor  of  plaintiff  and  against 
defendant  for  $128.82,  and  the  fur- 
ther sum  of  costs  in  this  action. 
Docketed  Aug.  23,  1868,  10  A.  M. 
J.  P.  costs,  80  cents ;  C.  S.  C.  costs, 
$1.05.'  On  the  6th  of  June.  1888,  the 
plaintiffs  had  filed  a  lien,  the  form  of 
which  we  need  not  discuss,  with  an 
account  for  furnishing  and  putting 
tin  on  a  roof,  amounting  to  the  sum 
of  $137.82.  In  Boyle  v.  Bobbins,  71 
N.  C.  133,  t!ie  act  of  1868-69,  ch.  117, 
§  9  (which  has  been  brought  forward 
and  re-enacted  in  the  Code,  section 
1791),  was  construed  to  require,  at 
least  by  implication,  that  the  justice 
of  the  peace  should  set  forth  in  the 
judgment  the  date  of  the  lien,  and 
that  it  should  also  embody  a  gen- 
eral description  of  the  property  which 
the  plaintiff  seeks  to  subject  to  pri- 
mary liability  under  it.  If  only  per- 
sonal property  be  bound  by  the  lien, 
the  justice  must  insert  in  his  execu- 
tion a  requirement  that  the  specific 
property  subject  to  the  lien  shall  be 
first  sold  before  seizing  other  goods 
or  chattels,  while,  if  the  property  de- 
scribed in  the  notice  be  land,  the  jus- 
tice's judgment  must  be  docketed  in 
the  superior  court,  and  the  clerk 
must  incorporate  in  the  execution  a 
similar  direction  as  to  the  order  of 
selling.  So  that  the  judgment  cannot 
be  enforced  in  strict  compliance  with 


3G8 


LIABILITY    FOK    I'UKCIIASE-MONEY,  ETC 


"Where  there  is  liability  for  improvements,  a  judgment  on 
an  obligation  for  them  is  a  lien  which  will  attach  to  the  home- 
stead after  its  sale ;  and  it  is  even  maintained  that  the  pur- 
chaser is  presumed  to  know  that  a  general  judgment  lien  is 
upon  a  debt  for  improving  the  homestead,  though  the  judg- 
ment does  not  disclose  the  fact.^ 

Because  a  mechanic  or  material-man  has  no  lien  on  the 
homestead  when  he  has  neglected  to  record  his  claim,  or  has 
neglected  to  observe  some  other  statutory  requisite,  he  does 
not  lose  his  debt,  necessarily.  He  still  has  his  claim  against 
the  householder,  and  may  prosecute  it  to  judgment,  and  thus 
create  a  lien  upon  all  the  defendant's  realty,  except  the  home- 
stead.2    The  vendor  may  lose  his  lien  or  fail  to  create  one,  yet 


the  law  unless  the  oflBcer  whose  duty 
it  is  to  issue  execution  has  gotten 
such  information  from  the  record  in 
his  court  as  will  satisfy  him  that 
some  property,  described  with  rea- 
sonable certainty,  is  subject  to  the 
lien,  and  consequently  to  a  prior  lia- 
bility for  the  debt.  The  most  con- 
venient method  of  recording  the 
date  of  the  lien  and  the  descrip- 
tion of  the  property  bound  by  it  is  to 
embody  it  in  the  judgment,  which 
will  constitute  a  part  of  the  record 
in  either  court,  no  matter  which  offi- 
cer may  find  it  necessary  to  insert 
the  date  and  description  in  the  execu- 
tion. The  case  at  bar  illustrates  the 
importance  of  adhering  to  this  rule 
for  another  reason.  It  is  essential 
that  the  judgment  should  be  identi- 
fied as  that  brought  within  the  period 
prescribed  in  the  statute  (Code,  §  I'iOO) 
to  enforce  the  lien.  The  defendants 
in  the  answers  deny  that  this  judg- 
ment was  rendered  upon  the  account, 
filed  as  a  lien,  and,  while  some  cir- 
cumstances tend  to  show  that  the 
same  claim  was  or  may  have  been 
the  subject  both  of  the  lien  and  tlie 
action,  we  have  no  evidence  suffi- 
cient to  establish  absolutely  the  iden- 
tity of  the  two  accounts.     The  bur- 


den being  on  the  plaintiffs  to  bring 
the  judgment  within  the  exception, 
under  section  4,  article  10,  of  the  con- 
stitution, before  he  can  establish  the 
validity  of  the  sale  of  the  defend- 
ant's homestead,  we  think  that  in 
failing  to  connect  the  judgment  and 
execution  with  tlie  lien  filed  they 
have  failed  to  adduce  testimony  that 
is  essential  to  show  their  title.  The 
words  inserted  in  the  execution  after 
the  words,  'You  are  commanded  to 
satisfy  said  judgment,'  and  before 
the  words,  '  Out  of  the  personal  prop- 
erty of  the  defendant  within  your 
county,  to  wit,  by  first  selling  the 
right,  title  and  interest  which  the 
said  owners  had  in  the  property  at 
the  time  of  filing  their  lien,  and 
next  "  —  do  not  answer  the  purpose 
of  connecting  the  lien  with  tlie  judg- 
ment. If  it  were  true  that  the  plaint- 
iffs recovered  two  judgments  against 
the  defendants  for  sums  nearly  the 
same  as  that  claimed  in  the  lien, 
neither  being  for  an  identical  amount, 
he  might  issue  on  either,  selecting 
the  one  not  secured  by  some  other 
means  than  the  lien." 

iHurd  V.  Hixon,  27  Kas.  722; 
Greeno  v.  Barnard,  18  Kas.  518. 

2  Miller  v.  Brown,  11  Lea,  155. 


IMPROVEMENTS.  309 

have  his  rightful  claim  against  the  homestead-holder.^  There 
is  nothing  peculiar  in  the  law  stated,  as  any  lien-bearing  debt 
may  survive  the  loss  of  the  lien-right,  with  regard  to  any  other 
property  as  well  as  homestead. 

The  essentials  for  the  creation  of  a  lien,  for  improvements 
put  upon  the  homestead  at  the  instigation  of  the  owner,  do 
not  apply  when  the  improvements  are  involuntary ;  as  when 
they  are  made  by  a  city.  The  assessment  creates  the  lien ;  ^ 
and  the  governing  principle  is  different.' 

1  Bentley  v.  Jordan,  3  Lea,  353.  ^Ante,  p^  18L 

2Bordage3  v.    Higgins   (Tex),    19 
a  W.  446. 
34 


CHAPTER  XII. 


RESTRAINT  OF  ALIENATION. 


1.  Restraint  and  Exemption  Rela- 

tive. 

2.  Sale  by  Husband  and  Wife. 

3.  Trust    Deed  by    Husband    and 

Wife. 

4.  Mortgage  by  Husband  and  Wife. 

5.  No     Alienation     by     Husband 

Alone. 

6.  Sales  Subsequently  Validated. 


§  ?• 


Wife's  Right  Relative  to  Sales. 
Estoppel  by  Sole  Deed- 
Conveyance     by    Husband    to 

Wife. 
Incumbrance  Inhibited. 

11.  Interests  of  Non-owning  Bene- 

ficiaries. 

12.  Conveyance  to  Pay  Privileged 

Debts. 


9. 


10, 


§  1.  Restraint  and  Exemption  Relative. 

In  several  states  the  dedication  of  a  homestead  is  a  volun- 
tary act  on  the  part  of  the  householder  by  which  he  consents 
to  accept  certain  disabilities.  He  obtains  the  benefit  of  ex- 
emption by  the  acceptance  of  the  conditions  upon  which  it  is 
offered.  He  agrees  that  he  shall  no  longer  have  sole  control 
of  his  own  dedicated  property,  so  far  as  selling  or  incumber- 
ing it  is  concerned,  as  long  as  he  enjoys  the  protection  from 
forced  sale,  which  he  has  in  return  for  yielding  his  own  right 
to  sell  or  mortgage  it.  He  can  regain  his  individual  right  to 
alienate  only  by  abandoning  his  privileges. 

Though  not  a  contract,  the  mutual  arrangement  between 
himself  and  the  state,  with  the  proffer  of  the  law  on  one  side 
and  his  acceptance  by  dedication  on  the  other,  is  somewhat  in 
the  nature  of  corresponding  obligations. 

The  state  does  not  arbitrarily  forbid  his  selling  his  own  at 
will,  or  his  using  it  to  promote  his  credit,  by  pledging  or 
mortgaging  it  for  the  purpose  of  raising  money,  whenever  he 
conceives  it  to  his  interest  so  to  do.  It  does  not  inhibit  the 
selling  of  his  home  or  subjecting  it  to  a  lien  by  any  positive 
enactment  to  that  effect.  It  merely  provides  that  he  shall 
have  exemption  from  forced  sale,  with  certain  exceptions,  if 
he  will  consent  to  accept  that  benefit  on  the  terms  offered. 

The  state  does  not  make  any  invidious  distinction  between 
him  and  others  when  it  thus  makes  the  restraint  upon  the 


KKSTKAINT    AND    KXKMrilON    RELATIVE.  •><  J 

alienation  of  his  tledicated  homestead  depend  upon  his  volun- 
tary acce])tance  of  the  terms.  The  law  is  general,  being 
applicable  to  all  real-estate  owners  having  families  living  with 
them  in  the  dedicated  homes.  Were  it  to  make  the  arbitrary 
distinction  between  property  holders  that  one  should  not  have 
the  power  to  sell  his  own,  while  another  should  have  it,  with 
nothing  conditional  in  either  case,  it  would  be  an  unconstitu- 
tional discrimination. 

In  states  where  no  declaration  or  any  form  of  dedication  is 
required,  the  acceptance  of  the  state's  terms  is  not  so  appar- 
ent; but  even  in  these,  restraint  of  alienation,  being  confined 
to  homesteads,  may  be  considered  as  accepted  b}"  the  owner 
when  he  becomes  a  householder  and  holds  his  home  as  exempt 
under  the  statute. 

There  are  yet  other  states  which  give  exemption  protection 
yet  impose  no  restraint  upon  the  owner.  In  such,  if  mutual- 
it}'  of  obligation  between  them  and  him  is  wanting,  there  is 
nothing  of  which  the  owner  or  debtor  can  complain.  In  no 
case  is  the  state  under  any  obligation  which  prevents  it  from 
repealing  the  exemption  law  at  will. 

There  is  no  contract  between  the  state  and  the  homestead 
holder :  the  mutualit}''  above  mentioned  is  rather  incidental 
than  contractual. 

It  would  seem  that  no  one  should  be  prevented  from  pay- 
ing his  debts  by  the  sale  or  incumbrance  of  any  property  he 
has ;  that  the  debtor  and  his  wife  together  ought  not  to  be 
hindered  in  joining  together  to  relieve  themselves  of  the  ob- 
ligation to  pay,  though  their  home  be  lost  to  them  in  conse- 
quence. And  it  has  been  held  that  a  statute  forbidding  this  is 
unconstitutional.' 

The  legislator,  having  left  liens  upon  the  homestead,  created 
])ri()r  to  its  dedication,  unaffected;  and  having  granted  no  ex- 
emption against  antecedent  debts,  justifies  the  inviolability  of 
the  homestead  from  attacks  to  make  it  pay  later  debts  by  the 
consideration  that  the  creditors  had  notice  that  the  property 
was  not  liable.  Under  this  view,  the  appropriation  of  it  by 
the  owner  to  pay  such  debts  by  sale  and  the  surrender  of  the 
proceeds  for  the  purpose,  or  by  subjecting  it  to  a  lien  to  secure 

1  Dunker  v.  Chedic,  4  Nev.  823 :  Const  Nev..  art.  4,  §  30. 


372  RESTRAINT    OF    ALIENATION. 

the  debt,  may  be  constitutionally  forbidden,  so  long  as  the 
property  remains  unabandoned  as  a  homestead.  The  right  of 
the  beneficiaries  to  abandon  the  dedicated  homestead  and  give 
up  their  privileges  remains  intact ;  so  they  may  resume  the 
right  and  power  of  alienation  at  will.  The  husband  cannot 
resume  this  right  and  power,  however,  by  disclaimer  of  the 
exemption  right.' 

One  who  has  not  complied  with  the  terms  of  the  homestead 
law  requiring  selection  and  dedication  holds  his  home  as  he 
does  his  other  property,  and  is  not  restrained  in  the  alienation 
of  it.2 

The  following  extract  from  a  decision  will  further  present 
the  doctrine  of  free  disposal  in  the  absence  of  dedication : 

"  It  is  argued  by  counsel  for  plaintiffs  that  the  declaration 
is  required  only  to  protect  the  land  claimed  as  a  homestead 
ivom.  forced  sale.  The  act  cannot  be  so  construed;  nor  has  it 
ever  been  so  construed.  It  is  manifest  from  the  perusal  of 
the  act  that  it  was  to  disable  either  spouse  from  making  a 
voluntary  alienation  of  the  land,  but  only  when  a  sufficient 
declaration  was  made.  If  there  was  no  sufficient  declaration, 
the  power  of  the  husband  to  alienate  the  land  of  his  own  will 
remained  unimpaired."  ^ 

When  no  declaration  is  required,  disability  to  sell  has  been 
imposed  with  the  grant  of  exemption.* 

Where  exemption  and  restraint  of  voluntary  alienation  are 
not  correlative,  the  statutes  creating  the  former  are  not  con- 
strued to  imply  the  latter.  In  some  of  the  states,  Xh^jus  dis- 
jponendi  is  not  affected  by  homestead  laws,  at  the  present 
time ;  in  others,  it  was  formerly  left  unrestrained,  though  now 
restricted  to  the  joint  action  of  husband  and  wife  when  the 
owner  is  married.  The  principle,  however,  is  established,  that 
statutory  exemption  of  property  from  forced  sale  does  not 
necessarily  imply  that  voluntary  alienation  by  the  owner  is 
inhibited.* 

'  Robinson  v.  Davenport,  40  Tex,  Anderson,    56    Ga.   53 ;    Homestead 

334 ;  Williams  v.  Swetlaud,  10  la,  56 ;  Ass'n  v.  Enslow,  7  S.  C.  19. 

Lambert  v.  Kinuery,  74  N,  C.  348.  3  Boreham  v.  Byrne,  83  CaL  23,  28. 

2  Derr  v.  Wilson,  84  Ky.  14 ;   Bore-  *  Kennedy  v.  Stacey,  1   Bax.  220. 

ham  V.  Byrne,  83  Cal.  23,  28;  People  Act  of  May  5,  1870. 

V.  Plumsted,  2  Mich.  465  (under  stat-  ^Brame  v.   Craig,    12  Bush,  404; 

ute   now   superseded);    Simmons  v.  Kennedy  v.   Stacey,   57  Tenn.   223; 


tsAI.K    HY     IIU.SI5AND    AND    WIFE.  373 

Under  general  statutory  terms  of  exemption  from  seizure 
and  sale,  without  any  exj^ress  restraint  upon  voluntary  alien- 
ation, a  mortgage  given  by  the  owner  upon  his  exempt  home 
was  treated  as  nugatory,  though  he  was  free  to  sell  the  prop- 
erty —  free  to  do  so  after  having  given  the  mortgage,  and 
competent  to  grant  an  unincumbered  title.  The  reason  given 
was  that  the  exemption  right  is  not  susceptible  of  being 
waived  by  a  contract  of  mortgage.^  The  restraint  upon  alien- 
ating, which  is  a  usual  feature  of  homestead  laws,  is  not  found 
in  all ;  -  and  it  is  true  generally  that  where  there  is  no  re- 
straint put  upon  alienation,  the  owner  may  mortgage,  sell  or 
donate  his  homestead  property  without  doing  anything  to  the 
prejudice  of  his  creditors,  for  they  are  said  to  have  no  con- 
cern with  it.^ 

§  2.  Sale  by  Huslbaiid  and  Wife. 

Where  "  a  conveyance  or  incumbrance  by  the  owner  is  of 
no  validity  unless  the  husband  and  wife,  if  the  owner  is  mar- 
ried, concur  in  and  sign  the  same  joint  instrument,"*  the 
homestead  right  can  be  directly  convej^ed  only  by  their  joint 
action  in  a  deed,  or  by  abandonment;^  but  if  the  owner 
alone  convey  the  property,  and  a  subsequent  purchaser  buy  it 
of  the  first  vendee,  he  is  said  to  be  not  affected  with  notice  of 
the  invalidity  of  the  first  conveyance,  and  to  acquire  a  good 
title.« 

Homestead  Ass'n  v.  Enslow,  7  S.  C.  61 ;    Brame   v.  Craig,   12  Bush,  404. 

19 ;  Re  Cross,  2  Dill.  320 ;  Dawson  v.  The  owner  may  dispose  of  his  $1,000 

Hayden,  67  111.  52 ;  Smith  v.  Marc,  26  homestead  at  will.     His  title  is  not  a 

111.  150;  Ely  v.  Eastwood,  26  111.  108;  mere  life  estate  with  the  fee  exposed 

Rector  v.   Eotton,   3  Neb.  171 ;  Ed-  to  creditors.     Derr  v.  Wilson,  84  Ky. 

moudson  v.  Blessing,  42  Tex.   506 ;  14.     But  his    creditors    may  sell  it 

Jordon  v.  Peck,  38  Tex.  429;  Hart-  after  his  death,  subject  to  occupancy 

man  v.  Thomas,  37  Tex,  90;  Morrill  by  his  widow  and  children,  if  he  has 

V.  Hopkins,  86  Tex.  687;  Stewart  v.  died  without  making  any  disposition 

Mackey,  16  Tex.  57 ;  Lee  v.  Kings-  of  it.     lb. 

bury,  13  Tex.  71.  3  Grimes  v.   Portman,  99  Mo.  229; 

1  Van  Wickle  v.  Landry,  29  La.  An.  State  v.  Mason,  88  Mo.  228 ;  Holland 
330 ;  Hardin  v.  Wolf,  29  La.  An.  333 ;  v.  Kreider,  86  Mo.  59 ;  Beckmann  v. 
Le  Blanc  v.  St.  Germain,  25  La.  An.  Mej'er,  75  Mo.  333. 

289.  1  McC.  la.  Code,  §  3165  (1990). 

2  In  Kentucky  the  husband's  power  *Lunt  v.  Neeley,  67  la.  97.     Com- 
of  alienation  is  not  affected,  the  stat-  pare  Price  v.  Osborne,  34  Wis.  34. 
ute  merely  exempting  from  coercive  ^  lb. 

process.     Prebble  v.  Hall,    13  Bush, 


v874  -^  RESTRAINT    OF    ALIENATION. 

The  husband  alone  cannot  sell  a  tract  of  land,  within  the 
homestead  acreage,  which  he  owns  and  occupies  with  his  fam- 
ily; for  the  exemption  right  attaches  to  all  of  it,  when  it  is 
not  platted  and  does  not  exceed  the  prescribed  number  of 
acres.^ 

Both  husband  and  wife  joining  in  a  sale  with  conveyance 
and  acknowledgment  on  her  part,  it  is  not  generally  necessary 
that  the  renunciation  of  the  homestead  right  should  be  ex- 
pressed in  the  deed.  It  has  been  decided  that  in  a  deed  con- 
veying the  homestead,  made  by  husband  and  wife  jointly, 
there  need  be  no  express  renunciation  of  their  homestead 
right,  nor  any  reference  to  it.-  If  the  propert}'^  is  free  from 
liability  when  sold,  it  w^ill  go  so  into  the  hands  of  the  pur- 
chaser.^ But  it  will  become  liable  to  the  purchaser's  debts, 
like  any  other  property  of  his,  under  general  judgment  against 
him. 

The  purchaser  of  a  homestead  steps  into  the  shoes  of  the 
grantor,  so  far  as  concerns  its  liability  at  the  time.  It  cannot 
be  attacked  in  his  hands  for  debts  of  the  grantor  which  could 
not  have  been  enforced  against  it  before  the  sale.  It  has  ceased 
to  be  a  homestead  by  the  transfer,  if  the  grantee  has  not  made 
it  his  own  exempt  home ;  but  it  has  not  been  rendered  de- 
fenseless against  the  obligations  of  the  grantor,  unless  for 
taxes,  purchase-money,  improvements,  or  whatever  else  the 
governing  statute  may  have  excepted  from  the  general  ex- 
emption. And  the  purchaser  may  plead  and  prove  the  grant- 
or's exemption  right.* 

If  any  reservation  is  meant,  it  should  be  expressed.* 

When  a  statute  or  a  constitution  requires  the  joint  consent 
of  husband  and  wife  to  the  alienation  of  the  homestead,  the 
consent  need  not  be  written  unless  that  method  is  prescribed.'"' 
The  wife's  assent  to  the  grant  of  an  easement,  on  the  home- 
stead, to  a  railroad  company,  conferring  right  of  way,  may  be 

iWoolcut  V.    Lerdell,  78   la.    668,        •»  Elwell  v.  Hitchcock,  41  Kas.  130; 

citing  Goodrich  v.  Brown,  63  la.  247,  German  Ins.  Co.  v.  Nichols,  41  Kas. 

and  Barnett  v.  Mendenhall,  42  la.  296.  133 ;  Hixon  v.  George,  18  Kas.  253. 

2  Weigeman  v.  Marsot,  13  Mo.  Ap.        &  Martin  v.  Martin,  30  Kas.  708. 
576.  6  Dudley   v.  Shaw   (Kas.),  24  Pac. 

8  Holland  v.    Kreider,  86   Mo.  59;  1114. 
Kendall  v.  Powers,  96  Mo.  142. 


TRUST-DEKD    BY    II  US  HAND    AND    WIFE.  375 

proved  by  parol  testimony  or  an}'  kind  of  evidence  that  would 
be  admissible  to  support  any  other  material  fact.  It  need  not 
be  in  writing  —  much  less  need  it  be  by  signature  to  a  deed.' 

The  wife  does  not  become  surety  for  her  husband  when 
both  sign  a  conveyance  of  their  homestead  of  which  he  is  the 
owner.  She  does  not  jeopardize  her  separate  property  by  thu«i 
signing  the  deed  of  such  homestead.^ 

Where  dedication  is  effected  by  a  court  proceeding  —  not 
by  a  recorded  declaration  or  by  occupancy  merely  —  the  home- 
stead cannot  be  alienated  by  both  husband  and  wife  unless  the 
deed  be  approved  by  the  court.' 

§  3.  Trust-deed  by  Husband  and  Wife. 

The  inability  of  the  husband  to  alienate  his  homestead  with- 
out his  wife's  consent  and  her  participation  in  the  act  of  con- 
veyance extends  to  conditional  sales,  such  as  those  by  mort- 
gage or  deed  of  trust.  Otherwise  he  might  easily  deprive  her 
of  home  protection  by  hypothecating  his  property,  allowing 
it  to  be  sold  and  failing  to  redeem  it. 

The  inhibition,  operating  as  a  restraint  (since  thus  one  ben- 
eficiary cannot  deprive  the  other  of  the  exemption  right, 
when  they  are  man  and  wife),  extends  also  to  the  alienation 
of  equitable  interests.  The  husband's  conveyance  of  an  equi- 
table interest  in  a  homestead  to  secure  the  payment  of  a  pre- 
existing debt  creates  no  lien  when  the  wife  does  not  sign.'* 
If  the  creditor  has  no  conventional  lien,  and  if  no  lien  is 'cre- 
ated by  law  in  favor  of  pre-existing  debts  against  a  homestead, 
the  husband  alone  cannot  give  him  one.  That  is  all  the  cited 
cases  import.  The  wife  cannot  defeat  or  even  impede  a  lien- 
creditor;  she  can  defeat  her  husband's  purpose  to  convey  an 
equitable  interest  as  security  for  an  existing  obligation.  Or- 
dinary pre-existing  debts  must  be  reduced  to  judgment  before 

iJd;   Pilcher  v.    Railroad  Co.,   38  fer  v.  Huflf,  4^  Ga.  589;  Burnside  v. 

Kas.  516.  Terry,  45  Ga.  630;  Simpson  v.  Rob- 

2  Witherington  v.  Mason,  86  Ala.  ert,  35  Ga.  180. 

345.  ••Moore    v.  Reaves,   15   Kas.    150; 

SLinch  v.   Mclntyre,   78  Ga.    209.  McKee    v.    Wilcox,    11    Mich.    358; 

Formerly  alienation  was  inhibited  in  McCabe  v.  Mazzuchelli,  13  Wis.  478. 

Georgia.     Now  it  requires  the  sane-  Joint  deed :  Ott  v.  S^jrague,  27  Kas. 

tion  of  the  Superior  Court.     See  Rob-  G20.      Compare   Reihl  v.  Bingenhei- 

erts  V.  Trammel],  55  Ga.  383 ;  Shaf-  mer,  28  Wis.  84. 


37<t  RESTRAINT   OF    ALIEN A'nON. 

they  can  bear  a  lien  on  the  homestead.  Then  the  lien  is  gen- 
eral, as  though  there  were  no  homestead. 

If  both  husband  and  wife  have  joined  in  giving  a  deed  of 
trust,  and  it  be  foreclosed  after  his  death,  she  may  be  denied 
homestead  claim  to  the  remaining  proceeds  after  the  satisfac- 
tion of  the  debt'  And  it  follows  that  the  purchaser  at  the 
foreclosure  of  a  deed  of  trust  takes  the  land  free  from  any 
claim  of  homestead  made  by  the  wife  of  the  grantor  after  the 
sale.^  The  deed  of  trust,  covering  more  realty  than  the  home- 
stead but  including  it,  being  regularly  given  by  the  wife  as 
well  as  the  husband,  becomes  a  complete  alienation  of  the 
whole  upon  foreclosure. 

A  wife,  who  had  life-estate  in  property  which  included  hers 
and  her  husband's  homestead,  joined  him  in  conveying  the 
property  by  deed  of  trust,  under  which  the  whole  was  sold. 
It  was  not  necessary  that  she  should  acknowledge  the  deed  so 
as  to  make  the  non-exempt  portion  of  the  property  pass  by 
the  act,  since  the  governing  statute  put  her  in  the  position  of 
2,  feme  sole  with  respect  to  such  acknowledgment ;  but  as  there 
could  be  no  release  or  waiver  of  her  homestead  right  without 
her  acknowledgment,  the  purchaser  was  required  to  pay  her 
one  thousand  dollars  —  the  maximum  of  the  exemption  — 
upon  the  property  being  found  indivisible  so  that  her  home- 
stead could  not  be  set  apart  in  kind.* 

The  law  favors  the  payment  of  debts;  and  a  deed  of  trust 
for  the  purpose,  given  by  both  husband  and  wife,  ought  to  be 
everywhere  enforceable.* 

A  deed  of  trust  on  the  homestead,  duly  executed  by  husband 
and  wife,  may  be  renewed  by  the  husband  alone  so  as  to  pre- 
vent prescription.^  In  renewing  the  note  about  to  become 
outlawed,  he  creates  no  new  obligation ;  he  binds  his  wife  to 
nothing  to  which  she  was  not  bound  before ;  he  burdens  the 

1  Woerther  v.  Miller,  13  Mo.  App.  ^  The  husband  and  wife  may  exe- 

567.  cute  a  deed  of  trust  to  secure  a  debt, 

^Weigman  v.  Marsot,  13  Mo.  App.  in  Virginia,  which   will  hold  good 

576.  against  the  homestead.     And  it  is 

3  Knight  V.  Paxton,  124  U.  S.  553 ;  queried  whether  he  alone  may  not 

1   Starr  &  Curtis'  Annot.   Stat.  111.,  do  so.     White  v.  Owen,  30  Gratt  4a 

ch.  52;  Bradshaw  v.  Atkins,  110  111.  &  Smith  v.  Scherck,  60  Miss.  491; 

823,  329 ;  Edwards  v.  Shoeneman,  104  Jenness  v.  Cutler,  12  Kas.  500. 
111.  278;  Hogan  v.  Hogan,  89  111.  437. 


MOKTGAGE    liV    IILSBAND    AND    WIFE.  377 

homestead  witli  no  weight  that  was  not  previously  incumbent 
upon  it.  This  reasoning  is  not  entirely  satisfactory ;  the  wife's 
joining  in  the  renewal  of  the  note  would  seem  more  regular. 
As  a  party,  she  ought  to  be  left  to  her  own  action.  So  it 
has  been  held  that,  under  statutes  forbidding  a  husband  to 
mortgage  the  homestead  without  the  consent  of  his  wife,  he 
cannot  enlarge  the  terms  of  a  mortgage  previously  given,  nor 
renew  it,  nor  extend  the  statute  of  limitations  respecting  it.^ 

§  4.  Mortgage  hy  Husband  and  Wife. 

As  mortgage  is  a  species  of  alienation,  or  the  creation  of  a 
lien  where  not  a  kind  of  alienation,  the  general  rule  is  that 
both  husband  and  wife  must  join  in  creating  it  upon  the 
homestead,  w^hether  the  title  be  in  the  one  or  the  other,  or  in 
both.2 

Is  the  joinder  of  both  necessary  to  the  giving  of  a  mortgage 
to  secure  a  debt  antecedent  to  the  homestead? 

As  to  antecedent  debts,  there  is  no  homestead.  They  may 
be  prosecuted  to  judgment  creating  a  general  lien,  as  though 
there  were  no  homestead  law ;  and  the  lien  will  bear  upon  the 
homestead  just  as  upon  any  other  realty  of  the  judgment 
debtor.  And  this  has  led  to  the  conclusion  of  some  courts 
that  there  need  be  no  joinder  by  the  wife,  Avhen  the  husband 
mortgages  his  homestead  to  secure  such  a  debt.' 

The  received  doctrine,  however,  is  that  her  joinder  is  neces- 
sary. And  it  is  supported  by  both  reason  and  authority. 
There  is  a  difference  between  the  general  liability  of  the 
homestead  for  such  debts,  and  the  particular  liability  which  is 
created  by  mortgage;  betw^een  an  ordinary  debt  which  may 
be  collected  of  the  homestead  after  judgment,  and  a  property 

1  Dunn   V.   Buckley,   56   Wis.  190,  74  Mo.  49,  rendered  under  Wagner's 

192;  Campbell  v,  Babcock,  27  Wis.  Stat.,  p.    697;    and  see  Schneider  v. 

512;  Spencer  v.  Fredendall,  15  Wis.  Hoffman,  9  Mo.  App.  280;  Black  t. 

666;   Barber  v.   Babel,   36    Cal.   21;  Epperson,    40    Tex.     187;     Tong    v. 

Thompson  v.  Pickel,  20  la.  490.  Eifort,  80  Ky.  152 ;  Duncan  v.  Moore, 

-Jelinek  v.  Stepan,  41  Minn.  412;  67  Miss.  136;  Ontario  Bank  v.  Gerry 

Furguson  v.  Kumber,  25  Minn.  183;  (Cat),  27  P.  531 ;  Fleming  v.  Graham 

Smith  V.  Lackor,  23  Minn.  454;  Bar-  (N.  C),  14  S.  E.  920. 
ton  V.  Drake,  21  Minn.  2.9;  Kaes  v.        ^Kennedy'v.  Stacey,  57  Tenn.  220; 

Gross,  92  Mo.  648 ;  Riecke  v.  Westeu-  Dunker  v.  Chedic,  4  Nev.  823 ;  Higley 

hoff,  85  Mo.  642.    See  Lewis  v.  Curry,  v.  Millard.  45  la.  586. 


;>78  RKSTKAINT    OF    ALIENATION. 

debt  which  may  be  proceeded  upon  in  rem..  The  husband 
alone  cannot  convert  the  lefcs  liability  to  the  greater ;  the  ordi- 
nary personal  obligation  to  property  indebtedness  with  respect 
to  the  homestead,  without  making  the  wife's  home  less  certain 
of  continuance  than  it  was  before. 

As  he  alone  cannot  sell  the  homestead  outright  to  an  ante- 
cedent creditor  in  consideration  of  the  cancellation  of  the  debt 
(which,  by  the  civil  law,  would  be  dation  en  paiement),  with- 
out his  wife's  consent,  it  would  seem,  by  parity  of  reason,  that 
he  alone  cannot  put  a  lien  upon  it  under  which  it  may  be  sold. 

Though  there  is  no  homestead  as  to  antecedent  creditors, 
there  is  a  requirement  in  several  states  that  the  homestead 
shall  be  the  last  property  exhausted  under  a  general  judgment 
bearing  upon  it  with  other  realty ;  and  also  under  a  mortgage 
covering  that  and  other  property.^  Thus,  a  distinction  is  made 
between  that  and  other  property  when  all  is  liable.  Wher- 
ever this  distinction  exists,  there  is  an  additional  reason  why 
the  wife  should  have  her  chance  of  home  continuance  saved 
to  her  from  any  ill-advised  conversion  of  the  ordinary  ante- 
cedent debt  to  tliat  of  one  secured  by  a  specific  lien  upon  the 
homestead. 

The  authorities  preponderate  in  favor  of  these  reasons, 
though  not  all  based  upon  them.  Good  reasons,  whether 
those  above  assigned  or  others  founded  upon  statutes  and  the 
policy  of  the  state,  will  be  seen  in  the  opinions.  It  may  be 
concluded  that  the  question  above  put  should  be  answered  in 
the  affirmative.^  In  a  state  which  has  since  extended  its  ex- 
ce])tions  to  exemption,  it  was  held  that  a  mortgage  made 
alone  by  a  husband  or  wife  is  void,^  except  for  purchase- 
money.*  After  a  joint  sale  by  both,  with  abandonment,  the 
foreclosure  of  a  mortgage  given  hy  the  husband  alone  would 
not  affect  the  wife.^ 

After  a  husband  and  wife  had  mutually  conveyed  a  part  of 
their  homestead  property,  the  purchaser  found  that  it  had 

>  Jackson  v.  Shelton,  89  Tenn.  82.  Probasco,  14  Kas.  175.     See  Jenness 

2  Moore  v.  Reaves,  15  Kas.  150;  Ott  v.  Cutler,  12  Kas.  500. 

V.  Sprague,  27  Kas.  620 ;  McCabe  v.  ^  Pratt  v..  Topeka  Bank,    12  Kas. 

Mazzuchelli,  13  Wis.  478 ;  McKee  v.  570 ;    Andrews   v.   Alcorn,    13    Kas. 

Wilcox,  11  Midi.  358.  351 ;  Nichols  v.  Overacker,  16  Kas.  54. 

5  Morris  v.  Ward,  5  Kas.  239 ;  Doll-  '^  Morris  v.  Ward,  5  Kas.  239. 

man  v.  Harris,  5  Kas.  597 ;  Ayers  v. 


MORTGAGE    UY    IILS15AND    AND    WIFK.  ;3(9 

been  validly  incumbered,  returned  the  deed,  leased  the  prop- 
erty for  six  years,  and  received  from  the  grantors  a  promise  of 
an  unincumbered  title  to  be  given  at  the  end  of  that  time.  The 
agreement  was  binding  on  the  husband  and  wife,  who  were 
legally  obligated  to  convey  the  part  of  their  homestead  de- 
scribed in  the  deed  at  the  stipulated  time.  The  return  of  the 
instrument,  meanwhile,  did  not  impair  the  sale.  The  pur- 
chaser's rights  under  the  contract  dated  from  the  delivery  of 
the  deed  to  him.'  . 

Restraint  upon  alienation  by  which  the  husband  cannot 
mortgage  his  own  land  occupied  by  his  family  as  a  homestead 
without  his  wife's  consent  and  signature  is  not  for  the  benefit 
of  creditors.  Husband  and  wife  together  may  convey  their 
homestead,  within  the  monetary  limit,  without  receiving  any 
consideration  whatever,  and  yet  the  creditors  are  not  injured, 
since  they  could  not  have  any  claim  against  that  species  of 
property,  according  to  the  statutes  and  judicial  expositions.'' 
The  moral  fraud  of  such  a  transaction  is  relegated  to  the 
court  of  conscience. 

A  husband  and  wife  joined  in  mortgaging  two  tracts  of 
land.  Subsequently  the  husband  sold  one  of  them  with  full 
warranty,  and  upon  that  the  mortgage  was  afterwards  fore- 
closed. The  purchaser  from  the  husband  could  make  the 
other  tract  bear  its  portion  of  the  mortgage  burden,  notwith- 
standing the  assertion  of  homestead  right  in  it  on  the  part  of 
the  widow  and  minor  heirs  of  the  husband  now  deceased,  to 
whom  it  had  been  set  apart." 

No  lien  attaches  to  real  estate  by  virtue  of  a  judgment 
against  its  owner,  w^hen  such  property  is  not  subject  to  levy 
and  sale  in  satisfaction  of  the  decree.*  Ordinarily,  the  fore- 
closure of  a  valid  homestead  mortgage  is  like  any  other.^ 

'  Bunz   V.  Cornelius,  19  Neb.  107.  mortgage  of  a  homestead  owned  by 

(Souverbye   v.    Arden,  1   Johns.  Ch.  a  married  person  that  both  spouses 

355 ;  Connelly  v.  Doe,  8  Blackf.  320 ;  join   in   the  act.   by  Mo.    Rev.    Stat 

3  V^ash.  Real  Prop.  285;  Tiedeman  (1879),  §2689.     Riecke  v.  Westenhoflf, 

on  Real  Prop.,   §  812,  on   the  effect  85  Mo.  643. 

of  returning  the  deed.)  *  Grimes  v.  Portman,  99  Mo.  239 ; 

2  Toug  V.  Eifort,  80  Ky.  152  ;  Dowd  Freeman  on  Judgments,  §§  339,  340, 

V.  Hurley,  78  Ky.  260.  355  ;  Freeman  on  Executions,  §  249 ; 

s  Calhoun    v.    Snyder,    6    Binney,  Holland  v.  Kreider,  86  Mo.  59. 

135;  Hall  v.  Morgan,  79  Mo.  47.     It  ''In  California,  a  claim  secured  by 

was  made    necessary   to    the   valid  mortgage  must  be  presented  for  al- 


380 


J^KSTKAINT    OF    ALIENATION. 


The  assent  of  husband  and  wife  occupying  their  homestead, 
to  its  incumbrance,  must  be  contemporaneous.  Both  must 
sign  the  instrument.  A  deed  of  trust  given  by  the  husband 
alone,  though  he  is  tlie  owner  of  the  property,  cannot  be  ren- 
dered valid  by  a  later  conveyance  from  the  wife  to  the  cred- 
itor.^ 

To  secure  a  joint  and  several  promissory  note  of  a  husband 
and  wife,  they  mortgaged  their  homestead.  Upon  his  death, 
the  homestead  was  set  apart  to  her  out  of  his  estate.  Unless 
the  mortgagee's  claim  was  presented  for  allowance  against  the 
estate,  the  mortgage  could  not  be  foreclosed,^  A  complaint 
against  the  w^ife  alone,  on  foreclosure,  praying  for  a  personal 
judgment  against  her  but  not  averring  the  presentation  Of 
the  claim,  is  insufficient  to  constitute  a  cause  of  action.* 

In  every  foreclosure  of  a  mortgage  of  the  homestead,  hus- 
band and  wife  being  interested,  both  must  be  made  parties 
defendant.*  Even  though  the  wife  be  disinterested  directly,  as 
when  the  mortgage  was  given  b}^  the  husband  before  marriage 
and  thus  has  priority  to  any  right  of  hers,  she  should  be  made 


lowance  to  the  administratoi'  of  the 
deceased  mortgagor's  estate,  before 
it  can  be  foreclosed  on  the  home- 
stead. Even  if  foreclosure  has  been 
commenced  during  the  mortgagor's 
life,  and  the  plaintiff  has  waived  re- 
course against  any  other  property, 
and  the  plea  of  lis  pendens  has  been 
filed,  the  plaintiff  cannot  proceed 
further  in  his  action  without  present- 
ing his  claim  to  the  representative  of 
the  decedent  mortgagor.  Bollinger 
V.  Manning,  79  Cal.  7;  Cal.  Civ.  Code 
of  Proc,  §§  1475,  1502;  Camp  v. 
Grider,  62  Cal.  20 ;  Wise  v.  Williams, 
73  Cal.  547.  Where  the  mortgaged 
homestead  is  the  whole  estate  (there 
being  no  other  assets)  the  rule  is  the 
same.  Bollinger  v.  Manning,  supra. 
But  if  the  mortgage  is  on  a  home- 
stead which  is  the  separate  property 
of  the  wife,  and  the  mortgagee 
waives  all  claims  against  the  hus- 
band's estate,  he  need  not  present  his 
claim  to  the  administrator.  Bull  v. 
Coe,  77  Cal.  54 ;  Shadt  v.  Heppe,  45 


Cal.  437.  Nor  need  he  present  his 
claim  when  the  mortgage  was  given 
by  both  husband  and  wife,  if  the 
husband  has  been  adjudged  insolv- 
ent. Montgomery  v.  Robinson,  76 
Cal.  229.  For  the  rule  in  Illinois, 
when  mortgagees  waive  homestead 
right,  and  the  mortgage  covers  other 
lands  than  the  homestead,  see  First 
N.  Bank  v.  Briggs,  22  111.  App.  228, 
citing  Rogers  v.  Meyers,  68  111.  92: 
Brown  v.  Cozard,  92  111.  178 ;  Plain  v. 
Roth,  107  III.  588. 

iMiss.  Code,  1880,  §  1258:  Duncan 
V.  Moore,  67  Miss.  136 ;  Cummings  v. 
Busby,  62  Miss.  195 ;  Bank  of  La.  v, 
Lyon,  52  Miss.  181 ;  Johnson  v.  Brook, 
31  Miss.  1.  Compare  Smith  v.  Scherck. 
60  Miss.  491. 

2  Mechanics'  Ass'n  v.  King,  88  Cal. 
440 ;  Camp  v.  Grider,  63  Cal.  20. 

3  Hearn  v.  Kennedy,  85  Cal.  55.  Dis- 
sent by  Beatty,  C.  J. 

*  Burnap  v.  Cook,  16  la.  149 ;  (lood- 
rich  V.  Brown,  63  la.  247. 


MOKTUAUE    IJV    IILSIJAND    AND    WIFE.  381 

a  party  to  the  foreclosure  if  the  sale  is  meant  to  bind  her 
thereafter  relative  to  right  of  dower.'  Though  she  be  dead, 
and  succeeded  by  a  second  wife;  and  though  she  had  not 
signed  a  mortgage  which  was  therefore  invalid,  it  is  held  that 
the  second  wife  must  be  made  a  party  to  the  foreclosure.'- 
But  a  mortgage  put  upon  premises  by  the  husband,  before 
the  homesteail  had  become  such  by  actual  occupancy,  may  be 
foreclosed  without  making  her  a  party.'' 

A  husband  cannot  mortgage  his  homestead  to  his  wife,  if 
the  law  prohibits  all  mortgages  of  homesteads.  Both  he  and 
she  cannot  together  incumber  such  property  with  a  mort- 
gage, when  all  mortgages  are  forbidden.  A  constitutional 
inhibition  is  paraphrased  as  follows :  "  No  mortgage,  trust- 
deed,  or  other  lien  created  by  the  husband,  whether  alone  or 
together  with  his  w^ife,  shall  ever  be  valid."  This  is  the  Ian 
guage  of  the  original,  with  the  addition  of  the  phrase  begin- 
ning with  the  word  "  whether."  ■* 

The  court  argued  that  the  policy  of  the  provision  favors 
the  construction  given,  since  the  wife,  indisposed  to  sell,  might 
be  induced  to  incumber  the  homestead  by  plausible  assur- 
ances, on  the  part  of  the  husband,  of  his  ability  to  relieve  it; 
and  then  her  home  might  ultimately  be  lost  to  her.  But  it  is 
said  that  the  inhibition  does  not  apply  to  unmarried  bene- 
ficiaries—  on  the  authority  of  the  cases  last  cited. 

If  the  protection  of  the  wife  is  the  only  purpose  of  the  leg- 
islator, it  might  be  inferred  that  the  mortgage  of  a  home- 
stead to  her  by  her  husband  was  not  meant  to  be  forbidden. 
The  court  thought  this  point  new  in  the  state,  but  could  not 
believe  that  any  substantial  distinction  was  made  in  the  con- 
stitution between  the  limitation  of  the  husband's  power  and 
that  of  the  husband  and  wife,  since  the  effect  upon  the  wife's 
rights  might  be  as  great  by  the  exercise  of  the  joint  power  as 
by  that  of  the  husband's  single  power.  The  letter  and  spirit 
of  the  constitution  would  be  violated  in  either  case.' 

1  Chase  v.  Abbott,  20  la.  154.  v.  Van  Hutton,  75  Tex.  626 ;  Watts  v. 

-  Larson  v.  Reynolds,  13  la.  579.  Miller,  76  Tex.  14 ;  Inge  v.  Cain.  65 

*  Kemerer  v.  Bournes,  53  la,  172.  Tex.  79. 

^  Const.  Texas,  art.  16,  §  50;  Mad-        &  Madden  v.  Madden,  sit^j?-«;  Groes- 

den  V.  Madden  (Tex.),  15  S.  W.  480;  beckv.Groesbeck,78Tex.664;  14S.W. 

Lacey  v.  Rollins,  74  Tex.  566;  Smith  792;  Campbell  v.  Elliott,  52  Tex.  159. 


382  BESTRAINT    OF    ALIENATION. 

The  question  would  not  be  affected  by  the  fact  of  the  home- 
stead being  carved  out  of  the  husband's  separate  property.' 

A  mort<z;age  was  given  by  a  husband  and  wife  on  their 
homestead,  and  on  other  real  estate,  botli  belonging  to  her. 
A  second  mortgage  was  given  by  her  to  another  person,  on 
the  same  real  estate,  less  the  homestead.  The  second  mort- 
gagee asked. that  the  first  be  required  to  exhaust  the  home- 
stead before  resorting  to  the  other  realty,  so  that  he,  the 
second  mortgagee,  who  could  not  look  to  the  homestead, 
might  have  something  upon  which  to  satisfy  his  mortgage. 
The  court  said  that  if  neither  of  the  two  pieces  of  property 
covered  by  the  first  mortgage  was  a  homestead,  the  prayer 
for  such  relief  would  be  granted,  "  as  the  first  mortgagee  has 
two  funds  for  the  satisfaction  of  kis  mortgage,"  while  the 
second  mortgagee  has  but  one.  But  the  relief  was  denied, 
owing  to  the  homestead  character  of  one  of  the  properties 
subject  to  the  first  mortgage  lien.^ 

Suit  was  brought  on  a  promissory  note  to  obtain  judgment 
with  recognition  of  lien  upon  the  homestead  of  the  defend- 
ants, who  were  husband  and  wife.  He  had  given  his  note  to 
a  bank  for  borrowed  money,  and  had  pledged  a  contract  to 
purchase  real  estate,  as  security.  Subsequently  he  had  paid 
for  the  land,  and  caused  it  to  be  deeded  to  his  wife,  who  made 
declaration  of  homestead  upon  it.  The  bank  failed  to  record 
the  contract,  but  sued  upon  the  note.  The  court  said  that  if 
the  contract  were  a  mortgage  it  would  not  be  enforceable 
against  the  homestead  which  had  been  declared  by  the  wife.' 

If  a  husband  and  wife  join  in  executing  a  mortgage  on  their 
homestead  to  secure  his  debt,  and  there  are  no  witnesses,  as 
required  by  statute,  to  the  signature  of  the  wife  who  signed 
after  the  mortgage  had  been  recorded,  she  will  not  lose  her 
life  estate  in  the  homestead.^ 

1  Madden  v.  Madden,  supra.  it  was  delivered  and  recorded.  Under 

-  Mitclielson  \.  Smith,  28  Neb.  583.  the  act  of  1851,  no  release  or  waiver 

3  Ontario  Bank  v.  Gerry  (Cal.),  27  of    the    homestead  exemption    was. 

P.  531 ;  Cal.  Civ.  Code,  §  1241  (4).  valid  '  unless  made  by  deed  executed 

*  Wilson  V.  Mills,  22  Atlan.  (N.  H.)  by  the  husband  and  wife,  with  all 

455,  Clark,  J.,  who  said :    "  The  de-  the  formalities  required  by  law  for 

fendant  did  not  release  her  home-  the  conveyance  of  real  estate.'    The 

stead  by  signing  her  husband's  mort-  defendant  has  had  a  life  estate  in  the 

gage,  without  witnesses  or  seal  after  premises  set  ofif  to  her  as  a  home- 


*  NO    ALIENATION    BY    HUSBAND    ALONE.  383 

After  a  husband  and  wife  had  joined  in  mortgaging  their 
home  property,  they  declared  homestead  upon  it.  The  hus- 
band died  and  the  wife  administered  upon  his  estate.  The 
niortgagoe.  in  his  complaint,  expressly  waived  recourse  against 
any  other  property  than  the  land  mortgaged.  The  court  held 
that,  as  homestead  had  been  declared  on  that  property,  the 
mortgagee  must  ]iresent  his  claim  against  the  husband's  es- 
tate, notwithstanding  the  waiver.' 

A  married  man  cannot  give  a  valid  mortgage  of  his  home- 
stead without  his  Avife's  signature,  when  the  law  requires  her 
signature,  though  she  may  be  living  aj)art  from  him  ;  her  right 
of  homestead  may  have  expired ;  or  he  may  have  been  neces- 
sitated to  give  it  to  obtain  food.- 

§  5.  No  Alienation  by  Husband  Alone. 

Under  the  prevailing  homestead  system,  Avhere  homestead 
dedication  or  occupation  is  one  of  the  conditions  to  the  en- 
joyment of  exemption,  restraint  upon  alienation  is  imposed 
for  the  ])urpose  of  family  protection  and  conservation.  This 
restraint  applies  to  permanent  fixtures' — to  those  that  be- 
come realty  as  part  of  the  homestead. 

Most  of  the  statutes  offering  exemption  of  family  residences 
forbid  the  sale  or  incumbrance  of  the  protected  home  by  a 
husband  without  the  consent  of  his  wife.  The  inhibition  is  ex- 
pressed in  different  terms  in  different  statutes;  in  some  more 
stringently  than  in  others.  Not  only  the  wife's  consent,  but 
Jier  signature,  is  required  by  several  statutes.  And  she  must 
be  examined  apart  by  the  officer  taking  the  acknowledgment, 
and  express  to  him  that  her  signature  was  made  knowingl}'- 
and  voluntarily ;  and  the  officer  must  certify  to  the  examina- 
tion, under  the  requirement  of  some  states. 

Under  the  general  rule  that  the  husband  alone  cannot  sell 

tstead,  as  against  the  plaintiff's  mort-  Buzzell,  60  N.  H.  189."     Gen.  Laws 

gage.  Dickinson  v.  McLane,  57  N.  H.  of  N.  H.,  ch.  135,  §  3. 

31 ;  Lake  v.  Page,  63  N.  H.  318.     The  i  Wise  v.  Williams,  88  Cal.  30,  cit- 

mortgage   note  was    not  signed  by  ing  ]\Iechanics,  etc.  v.  King,  83  Cal. 

the  defendant.      It  was  neither  her  440  ;  Bollinger  v.  Manning,  79  Cal.  7 : 

debt,  nor   a  contract  respecting  her  Camp  v.  Grider,  63  Cal.  20. 

property,     and,     being    a     married  '-'  Herrou  v.  Knapp,  72  Wis.  553 ; 

woman,   she  could  not  bind  herself  Ferguson  v.  Mason.  60  Wis.  377. 

by  a  promise  to  pay  it,  either  by  way  •' House  v.   Plielan  (Tex.).  19  S.  W. 

of    contract  or    estoppel.     Ennk   v.  140.  _ 


3^4: 


RESTKAINT    OF    ALIENATION. 


or  incumber  his  dedicated  homestead,  all  alienation  of  it  in 
any  form  by  his  act,  when  the  property  itself  is  not  liable  iv. 
rem^  is  absolutely  void,  not  only  as  to  the  rights  of  his  wife, 
who  does  not  join  him  in  the  deed,  and  as  to  the  children,  to 
whom  the  law  gives  the  protection  of  shelter  and  the  com- 
forts of  a  habitation,  but  also  as  to  himself.  His  act  is  a  nul- 
lity, and  he  escapes  the  consequences  which  would  follow  it  so 
far  as  his  own  right  and  title  is  concerned  but  for  the  equi- 
table rights  and  interests  of  his  family.  His  deed  or  contract 
is  as  though  it  was  never  Avritten  or  desig-ned.^ 

The  right  to  sell  includes  the  right  to  sell  conditionally, 
which  is  the  same  as  to  say  the  right  to  mortgage  the  prop- 
erty ;  ^  so  the  inhibition  to  sell  is  extended  to  mortgaging.' 

The  husband's  sale  conveys  no  title  in  law  or  equity,  where 
the  wife  has  not  joined,  and  the  property  is  homestead.* 

A  husband  alone  cannot  convey  property  which  he  has  ac- 
quired by  the  exchange  of  the  homestead  for  the  purpose  of 
making  a  new  homestead,  though  it  has  not  yet  been  occupied 
by  his  family  as  such.^ 

The  doctrine  has  been  carried  so  far  as  this:    "When  the 


1  Cowgill  V.  Warrington,  66  la.  666 ; 
Alley  V.  Bay,  9  la.  509 ;  Williams  v. 
Swetland,  10  la.  51 ;  Larson  v.  Rey- 
nolds. 13  la.  579 ;  Burnap  v.  Cook,  16 
la.  149 ;  Lanahan  v.  Sears,  102  U.  S. 
318 ;  Richards  v.  Chace,  2  Gray,  385 ; 
Doyle  V.  Coburn,  6  Allen,  72 ;  Connor 
V.  McMurray,  2  Allen,  202 ;  Morris  v. 
Ward,  5  Kas.  239 ;  Ayres  v.  Probasco, 
14  Kas.  190;  Coker  v.  Roberts,  71 
Tex.  598 ;  Kennedy  v.  Stacey,  1  Bax. 
220 ;  Hoge  v.  Hollister,  2  Tenu.  Ch. 
606;  Rogers  v.  Renshaw,  37  Tex. 
625 ;  Pastee  v.  Stuart,  50  Miss.  721 ; 
Bennett  v.  Cutler,  44  N.  H.  69 ;  Foss 
V.  Strachn,  42  N.  H.  40 ;  Gunnison  v. 
Twitchel,  38  N.  H.  72;  Gleason  v. 
Spray,  81  Cal.  217  ;  Sears  v.  Dixon,  33 
Cal.  326;  Revalk  v.  Kramer,  8  Cal. 
66 ;  Building  Ass'n  v.  Chalmers,  75 
CaL  332 ;  McHugh  v.  Smiley,  17  Neb. 
626 ;  Phillips  v.  Stauch,  20  Mich.  381 ; 
Amphlett  v.  Hibbard,  29  Midi.  298 ; 
Sherrid  v.  Soutliwick,  43  Mich.  515. 

2  Richards  v.  Chase.    2  Gray.  385 ; 


Boyd  V.  Cudderback,  31  111.  119;  Jor- 
dan V.  Peak,  38  Tex.  439 ;  Sampson 
V.  Williamson,  6  Tex.  102 ;  Dunker  v. 
Chedic,  4  Nev.  382. 

3  Gleason  v.  Spray,  81  Cal.  217 ;  Bar- 
ber V.  Babel,  36  Cal.  11 ;  Burkett  v. 
Burkett  78  CaL  310 ;  Fledge  v.  Gar- 
vey,  47  Cal.  371 ;  Gagliardo  v.  Du- 
mont,  54  Cal.  496 ;  Hershey  v.  Dennis, 
53  Cal.  77 ;  McLeran  v.  Benton,  43  Cal. 
467 ;  Leonis  v.  Lazzarovich,  55  Cal. 
52 ;  Hutchinson  v.  Ains worth,  63  Cal. 
286 ;  CaL  Civ.  Code,  §  1242. 

<  Myers  v.  Evans,  81  Tex.  317;  16 
S.  W.  1060.  In  Georgia  a  widow's 
homestead  may  be  sold,  under  order 
of  court,  with  the  consent  of  the  adult 
heirs,  so  as  to  give  the  purchaser  title 
in  fee.  The  proceeds  of  the  sale  may 
be  invested  in  other  property,  and  the 
rights  of  those  heirs  will  be  trans- 
ferred to  that.  Ga.  Code,  §  2025; 
Fleetwood  v.  Lord  (Ga.).  13  S.  V. 
574. 

5  Cowgill  V.  Warrington.  66  la.  666. 


NO  ALIENATION    BY    HUSBAND    ALONE.  385 

boundaries  of  the  homestead  to  be  carved  out  of  a  tract  of 
]and  greater  than  the  exempt  portion  liave  not  been  estab- 
lished, the  husband  alone,  though  owning  the  tract  in  his  own 
right,  cannot  convey  it  until  that  portion,  including  the  family 
residence,  shall  have  been  duly  ascertained  and  reserved.' 

Though  the  governing  statute  provides  that  a  married  man 
shall  not  alienate  his  homestead  without  his  wife's  signature 
to  the  deed,  and  her  examination  apart  from  him,'-  yet  if  he 
acquire  and  occupy  a  new  homestead  with  his  famdy,  before 
the  delivery  of  the  deed  of  the  old  one  to  the  grantee,  the 
alienation  will  hold  good,  though  she  merely  signed  it,  and 
had  no  private  examination.  The  reason  is,  such  sale  is  not 
that  of  a  homestead ;  the  day  of  delivery  is  the  date  of  sale.^ 

The  provision  that  land,  occupied  as  a  residence,  shall  not 
be  alienated  by  married  beneficiaries  without  the  joint  con- 
sent of  both  husband  and  wife,  was  held  to  imply  that  the 
owner  may  sell  it  when  unmarried;  that  the  surviving  hus- 
band may  sell  it  absolutely  subject  to  the  minor  children's 
right  of  occupancy.* 

What  the  husband  alone  cannot  do  directly,  he  cannot  do 
indirectly.  For  instance,  he  cannot  stand  by  and  see  it  sold 
under  a  void  mortgage,  and  thus  deprive  his  family  of  the 
home  protection  vouchsafed  to  them  by  the  law.* 

When  a  homestead  has  been  sold  for  cash,  or  notes  have 
been  taken  for  the  price,  the  money  or  notes  are  usually  ex- 
empt if  held  to  buy  a  new  homestead.^  Both  husband  and 
wife  should  join  in  such  sale.^ 

An  owner  cannot  lease  his  homestead  and  thus  deprive  his 

'  Goodrich  v.  Brown,  63  la.  247.  *  Hannon  v.  Somnier,  10  Fed.  Rep. 

2  Ala.  Code,  §  2508.  601  (Cir.  Ct,  Dist  Kansas);  Dayton 

3  Woodstock  Iron   Co.   v.  Richard-    v.  Donart.  22  Kas.  256. 

son  (Ala.),  10  So.  144.     See  same  title,  ^  Wood  v.  Lord,  51  N.  H.  448 ;  Mor- 

90  Ala.    268;  Jenkins  v.    Harrison,  ris  v.  Sargeant,  18  la.  90;  Abbott  v. 

66  Ala.  356:  Elsberry  v.  Boykin,  65  Cromartie.  72  N.  C.  548;  Parks  v.  Ct. 

Ala.   340;    Stiles  v.    Brown,    16  Vt  Ins.  Co.,  26  Mo.  App.  511. 

565;    Mitchell   v.  Bartlett,  51    N.  Y.  sHuskins  v.  Haulon,  72  la.  37. 

453;  Lee   v.  Insurance   Co.,  6  Mass.  'Harper   v.    Forbes,    15   Cal.    202; 

219 :  Smith   v.  Porter,   10   Graj%  66 ;  Guiod  v.  Guiod,  14  Cal.  506 ;  Dorsey 

Barrows   v.  Barrows  (111.),  28  N.  E.  v.  McFarland,  7  Cal.  342 ;  Taylor  v. 

983;   Wilson  v.  Gray,  59  Miss.  525.  Hargous.  4  Cal.  268 ;  Atkinson  v.  At- 

(See     counter    cases    cited    by    the  kiuson,  40  N.  H.  249. 
court) 

25 


886  KESTKAINT    OF    ALIENATION. 

wife  of  her  home  without  her  consent.^  This  rule,  though 
widely  prevailing,  has  been  qualified  so  that,  where  the  quali- 
fication is  allowed,  an  owner  may  lease  parts  of  the  homestead, 
not  needed  for  household  purposes,  without  his  wife's  con- 
sent.^ 

An  exempt  family  dwelling-house,  on  leased  ground,  mort- 
gaged by  the  husband  to  secure  money  borrowed  which  was 
used  in  the  construction  of  the  house,  cannot  be  successfully 
claimed  as  exempt  from  the  demand  of  the  mortgagee  on  the 
ground  that  she  did  not  sign  the  instrument.^ 

Though  voluntary  alienation  may  not  be  by  the  husband 
alone,  he  is  yet  entitled  to  receive  and  dispose  of  the  price  of 
homestead  property  paid  in  compensation  for  the  taking  of 
any  part  of  his  homestead  under  the  law  of  eminent  domain.* 
Some  authorities  make  distinction  between  the  voluntary  and 
involuntary  granting  of  the  right  of  way.  And  when  it  is 
voluntary  on  the  part  of  the  husband  who  owns  the  home- 
stead, the  authorities  are  not  wholly  agreed  as  to  whether  he 
can  convey  alone,  and  whether  the  compensation  paid  to  him 
takes  the  exempt  character. 

It  was  held  competent  for  a  husband  to  give  the  right  of 
roadway  through  the  homestead  without  his  wife's  joinder, 
when  her  interests  were  not  affected.^  What  he  receives  in 
compensation,  when  his  dwelling  is  removed  for  the  roadway, 
is  exempt  as  the  house  was  before  removal,  when  it  has  been 
regularly  condemned ;  but  if  the  husband  alone  should  volun- 
tarily convey  the  right  of  way,  it  has  been  held  questionable 
whether  the  price  received  by  him  would  be  exempt.^ 

On  the  other  hand,  it  has  been  held  that  the  husband  can- 
not make  a  valid  contract  with  a  railroad  company,  giving 
them  the  right  of  way  across  the  homestead,  without  the 
consent  of  the  wife  and  her  signature  to  the  agreement.'' 

iThimes  v.  Stumpff,  33  Kas.  53;  SFournierv.  Chisholm,45Mich.  417. 
Coughlin  V.  Coughlin,  26  Kas.  116;  *  Canty  v.  Latterner,  31  Minn.  239- 
Ott  V.  Sprague,  27  Kas.  620 :  Cham-  5  Randall  v.  Tex.  Cent.  R.  Co.,  63 
bers  V.  Cox,  23  Kas.  395 ;  Hogan  v.  Tex.  586 ;  Chicago,  etc.  R.  Co.  v.  Tit- 
Manners,  23  Kas.  551 ;  Ayers  v.  Pro-  terington  (Tex.),  19  S.  W.  473 ;  Chi- 
basco,  14  Kas.  190 ;  Monroe  v.  May,  9  cago,  etc.  R.  Co.  v.  Sweuney,  38  la. 
Kas.  476;  Anderson  v.  Anderson,  9  182. 

Kas.  112;  DoUman  v.  Harris,  5  Kas.  <>  Huskins  v.  Hanlon,  72  la.  37. 

597.  ^  Evans  v.  Grand  Rapids,  etc.  R.  Co., 

2  Harkness  v.  Burton,  39  la.  101.  68  Mich.  603. 


SALES    SUIJSKQUKNTLY    VALIDATED.  387 

There  seems  to  be  reason  for  this  view ;  for  the  unrestrained 
right  of  conveying  such  way  would  imply  that  of  conveying 
like  ways  to  other  railways,  so  that  the  homestead  might  be 
ruined.  If  the  question  depends  upon  her  interest,  as  one  of 
the  cases  above  cited  seems  to  hold,  it  is  easy  to  see  that  her 
interest  Avould  be  seriously  aflfected  by  the  granting  of  several 
rights  of  way  across  the  home  farm,  or  by  the  granting  of 
one  if  the  road  is  to  run  through  the  house  or  yard.  If  her 
interest  is  the  criterion,  the  court  must  pass  upon  it  in  each 
case. 

A  householder  held  his  land  under  a  school  certificate  and 
occupied  it,  with  his  wife,  as  homestead.  He  assigned  hiscer- 
ficate  without  her  concurrence  by  signature,  but  both  surren- 
dered possession  to  the  purchaser.  The  transfer  was  declared 
void  for  want  of  her  signature ;  and  her  surrender  did  not 
operate  as  an  estoppel  to  her  subsequent  assertion  of  interest 
and  claim  of  homestead. 

The  case  turned  upon  the  transfer  by  assignment.  The 
court  held  that  act  not  merely  voidable,  as  it  would  be  in  some 
of  the  states,  but  absolutely  void,  since  the  statute  inhibiting 
conveyance  without  the  wife's  signature  was  positive,  as  be- 
fore construed.^  The  court  said :  "  Under  the  statute,  both 
the  husband  and  wife  must  be  bound  by  the  conversance  or 
contract  to  convey,  or  neither  is.  Neither  of  them,  acting 
alone,  can  give  it  validity.  So  that,  if  it  is  to  become  effect- 
ual by  estoppel,  the  estoppel  must  operate  as  to  both."  ^ 

§  6.  Sales  Subsequently  Talidated. 

It  has  been  held  that  subsequent  abandonment  of  the  home- 
stead will  inure  to  the  benefit  of  the  grantee  when  sale  by  the 
husband  has  passed  before.^  And  that,  upon  the  death  of  both 
spouses,  a  prior  sale  by  the  husband  cannot  be  questioned  by 
the  administrator,  if  there  are  no  minor  heirs'  interests  in- 
volved.* 

If,  after  a  bond  has  been  executed  by  a  husband  alone  to 

1  Citing  Gen.  Stat,  of  Minn.,  c.  68,  v.  Templeton,  48  111.  367 ;  McDonald 

§  2  (1878) ;  Barton  v.  Drake,  21  Minn.  v.  Crandall,  43  111.   238 ;    Brown  v. 

299;  Alt  V.  Banholzer,  39  Minn.  511.  Coon,  36  111.  243;  Jordan  v.Godman, 

-'Law  V.  Butler,  44  Minn,  482.  19  Tex.  273;  Stewart  v.  Mackey,  16 

•i  HaU    V.    Fullerton,   69    111.    448 ;  Tex.  56. 

Vasey  v.  Trustees,  59  III  188 ;  Hewitt  ^  Irion  v.  Mills,  41  Tex.  311. 


388  EESTKAINT   OF   ALIENATION. 

convey  the  homestead  at  a  future  time,  the  wife  should  die; 
or  if  he  and  she  should  abandon  their  exemption  right,  the 
other  party  to  the  contract  could  enforce  specific  perform- 
ance.^ If  the  wife  should  refuse  to  join  in  the  conveyance, 
in  conformity  to  her  husband's  executory  agreement,  the 
other  contracting  party  can  recover  of  him  whatever  he  may 
have  expended  in  good  faith  by  way  of  improving  the  prop- 
erty.^ 

Homestead  owners,  after  giving  bond  to  convey  their  home- 
stead, are  bound  to  comply  and  give  their  deed  at  the  stipu- 
lated time.  If  the  bond  requires  the  deed  to  be  given  to  a 
husband  and  wife,  and  it  is  really  given  to  the  husband  alone, 
he  will  hold  for  her,  in  trust,  as  well  as  for  himself." 

A  mortgage,  void  for  want  of  the  wife's  joinder,  does  not 
become  valid  at  her  death."*  Nor  would  the  husband's  exec- 
utory agreement  to  sell ;  but  he  would  be  liable  to  the  grantee 
for  non-performance,  if  the  latter  had  agreed  to  buy  in  good 
faith.*  And  it  has  been  held  that,  upon  the  wife's  death, 
specific  performance  can  be  enforced  —  that  is,  that  such  ex- 
ecutory agreement  would  not  be  void.® 

An  imperfect  conveyance  cannot  be  ratified  by  the  grantor 
so  as  to  render  it  valid,  if  his  wife  asserts  her  homestead  right 
in  the  property  sought  to  be  conveyed.^ 

Real  estate  not  occupied  as  a  residence  may  be  validly 
mortgaged  by  the  husband-owner,  so  that  his  wife,  who,  with 
her  husband,  occupies  another  home  at  the  time,  cannot  after- 
wards have  it  or  a  part  of  it  included  in  the  homestead  plat 
subsequently  set  out  and  recorded  so  as  to  affect  the  rights  of 
the  mortgagee.^  No  subsequent  adoption  or  selection  of  prop- 
erty as  a  homestead  can  retroact  so  as  to  invalidate  prior  law- 
ful conveyances,^  whether  by  sale  or  mortgage ;  for,  a  mortgage 

1  Eberling  v.  Verein,  72  Tex.  339 ;  «  Allison  v.  Shilling,  27  Tex.  450. 

Goff  V.  Jones,  70  Tex.  572 ;  Brewer  v.  "  Coker  v.   Roberts,   71   Tex.  598 ; 

Wall,  23  Tex.  589 ;  Cross  v.  Everts,  28  Jacobs  v.  Hawkins,  63  Tex.  1 ;  Wheat- 

Tex.  534,  ley  v.  Griffin,  60  Tex.  209 ;  Wood  v. 

-lb.;   and    Kempner    v.    Heiden-  Wheeler,   7  Tex.  14;  Texas  Const., 

heimer.  65  Tex.  587.  art.  16,  §  15. 

3  Schriber  v.  Piatt,  19  Neb.  625.  »  Lucas  v.  Pickel,  20  la.  490. 

■*  Larson  v.  Reynolds,  13  la.  579.  9  Yost  v.  Devanlt,  3  la.  345. 

6  Wright    V.   Hays,   34    Tex.    261; 
Cross  V.  Evarts,  28  Tex.  524. 


wife's  eight  kelative  to  sales.  389 

is  a  conveyance  held  to  be  inhibited  by  a  statute  which  did 
not  expressly  include  incumbrances  when  forbidding  convey- 
ance by  a  husband  or  wife  alone.' 

One  state  inhibiting  the  alienation  of  a  homestead  by  one 
of  the  marital  parties  without  joinder  by  the  other  si)ouse,  it 
was  held  in  another  state  that,  because  of  such  inhibition,  a 
sale  solely  by  the  husband  to  pay  a  pre-existing  debt,  and  a 
conveyance  back  to  him  with  the  vendor's  lien  preserved,  were 
void.  The  debt  was  not  thus  paid,  nor  was  the  vendor's  lien 
created  in  favor  of  the  creditor.^ 

§  7.  Wife's  Right  Kelative  to  Sales. 

A  wife  cannot  be  deprived  of  her  homestead  rights  by  being 
driven  from  her  home  by  her  husband,  and  then  livmg  apart 
from  him.  She  is  still  his  wife  and  entitled  to  all  the  prop- 
erty privileges  and  immunities  which  the  law  awards  her. 

So,  Avhen  a  discarded  and  outdriven  wife  subsequently  ob- 
tained a  divorce  with  judgment  for  alimony  against  her  hus- 
band, she  properly  disregarded  the  sale  of  the  homestead  by 
him  alone,  made  after  she  had  been  sent  away  and  before  the 
rendition  of  the  judgment;  and  she  executed  her  judgment 
against  the  property  as  his,  and  bought  it  at  the  judicial  sale. 
Her  homestead  right  had  continued  all  the  while.  Ilis  leg'al 
right  remained  in  him,  notAvithstanding  his  attempted  con- 
veyance of  it  without  her  signature.  Though  still  his  and  her 
homestead,  the  property  could  be  subjected  to  forced  sale  at 
her  suit,  since  her  judgment  for  alimony  w^as  a  lien  upon  it, 
and  he  was  estopped  from  setting  up  his  homestead  interest 
against  it,  after  having  alienated  it  in  contravention  of  law  so 
far  as  he  could  do  so.  It  is  said  that  he  had  abandoned  the 
homestead  and  had  thus  forfeited  the  exemption.  He  conld 
not  claim  it  for  his  vendee;  nor  against  his  wife  whom  he  had 
sought  to  defraud.^ 

If  the  "wife  is  the  owner  of  the  homestead  dedicated  by  her 
alone,  or  with  the  concurrence  of  her  husband,  she  cannot 
afterwards  alienate  or  incumber  it  without  his  consent,  while 
the  dedication  continues  and  its  privileges  are  enjoyed    by 

iBabcock  V.  Hoey,  11  la.  375.  SKeyes  v.   Scan'.an,   63  Wis.  345; 

-'  Parks  V.  Ct  Ins.  Co.,  26  Mo.  App.     Barker  v.  Dayton,  28  Wis.  368. 
511. 


390 


RESTRAINT   OF   ALIENATION. 


their  family.^  But  when  the  family  enjoyment  has  ceased, 
the  reason  for  the  restraint  no  longer  exists.  So,  when  a  wife 
abandoned  by  her  husband,  conveyed  her  homestead,  which 
was  her  separate  property,  to  her  sister,  the  husband  vainly 
sought  homestead  therein  after  her  death.^ 

If  the  title  is  in  the  wife,  and  she  voluntarily  conveys  the 
property  to  pay  a  debt  of  her  husband,  where  the  statute  de- 
clares such  act  of  hers  under  coverture  to  be  absolutely  void, 
nobody  but  herself  can  plead  the  statute  against  the  convey- 
ance ;  for  the  plea  of  coverture  is  personal,  and  she  alone  is 
privileged  to  plead  it.  True,  if  the  property  was  homestead, 
there  would  be  interests  that  might  be  prejudiced,  and  relief 
might  be  afforded.  But  aside  from  that,  the  deed  would  hold 
between  the  parties.* 


■1  Dollman  v.  Harris,  5  Kas.  597 ; 
Low  V.  Anderson,  41  Iowa,  476. 

2  Hector  v.  Knox,  63  Tex.  613. 

3  Palmer  v.  Smith  (Ga.),  13  S.  E. 
956.  Simmons,  J. :  "  1.  Under  the 
facts  reported  the  judge  directed  the 
jury  to  return  a  verdict  in  favor  of 
Smith,  the  defendant,  on  the  ground 
that  the  deed  put  in  evidence  from 
Walls  and  his  wife  to  Palmer,  Stew- 
art &  Co.  was  made  by  Mrs.  Walls  in 
payment  of  her  husband's  debts,  and 
was  therefore  void  under  our  code ; 
and  that  Smith,  the  defendant,  could 
plead  this  fact.  The  record  does  not 
show  that  Smith  was  privy  in  blood 
or  estate  to  Mrs.  Walls.  Where  a 
married  woman,  having  a  separate 
estate,  conveys  her  property  to  a 
third  person  in  payment  of  her  hus- 
band's debts,  and  afterwards  seeks  to 
recover  the  property,  or  to  cancel 
the  deed,  the  deed  will  be  declared 
void,  on  her  motion,  as  against  all 
persons  who  had  notice  that  it  was 
made  for  such  purpose.  But  where 
she  has  conveyed  her  separate  estate 
in  payment  of  her  husband's  debts  to 
one  party,  and  another  party  is  in 
possession  of  the  property,  who  is  not 
in  privity  with  her  in  blood  or  estate, 


and  is  sued  therefor  by  the  vendee  of 
the  wife,  the  defendant  cannot  set  up 
in  his  defense  that  the  deed  is  void 
because  made  in  payment  of  the  hus- 
band's debts.  This  plea  of  the  wife 
is  a  personal  privilege,  confined  to 
her  or  her  privies ;  and,  if  she  or 
they  do  not  set  it  up,  no  stranger  has 
the  right  to  do  so.  The  property 
conveyed  by  her  under  such  circum- 
stances belongs  to  hei-;  and,  if  she 
honestly  wishes  it  to  remain  in  the 
hands  of  her  vendee  in  payment  of 
her  husband's  just  debts,  and  does  not 
choose  to  claim  it  for  herself,  what 
right  has  a  stranger,  who  does  not 
hold  under  her,  to  set  up  this  defense, 
and  put  her  money  in  his  pocket? 
The  plea  of  infancy  is  a  personal 
privilege,  and  no  one  but  the  infant 
can  avail  himself  of  it.  The  plea  of 
usury  is  also  a  personal  privilege,  and 
no  one  but  the  party  ironiising 
usury,  or  his  privies,  can  take  ad- 
vantage of  it,  except  in  cases  of  in- 
solvency. We  think  the  plea  of  cov- 
erture is  also  a  personal  privilege  to 
the  wife,  and  can  avail  no  one  ex- 
cept herself  and  her  privies.  We 
therefore  hold  that  under  the  facts 
as  disclosed  by  the  record  the  deed 


WIFE  S    RIGHT    KELATIVE    TO    SALES. 


391 


The  husband,  selling  the  homestead  ostensibly  to  pay  a  bal- 
ance of  purchase-money,  but  really  to  defraud  his  wife  of  her 
rights  in  it,  conveys  no  title  good  against  her  when  the  pur- 
chaser had  notice.^  If  the  sale  is  one  requiring  her  signature, 
a  misrepresentation  of  the  effect  which  would  follow  the  sign- 
ing of  the  instrument  may  be  fraudulent.^  It  was  held  so 
when  a  wife  thus  had  been  induced  to  sign  away  her  home- 
stead.^ 

Inducement  to  sign  through  fear  will  invalidate  the  wife's 
signature.* 


from  Walls  and  wife  to  Palmer, 
Stewart  &  Co.  was  not  void  as  be- 
tween these  parties.  Zellner  v.  Mob- 
ley,  84  Ga.  746;  11  S.  E.  Rep.  402; 
Sutton  V.  Aiken,  63  Ga.  741 ;  1  Wait, 
Act  &  Def.  157  ;  Juchert  v.  Johnson, 
(lud.  Sup.),  9  N.  E.  Rep.  413;  Ben- 
nett V.  Mattingly,  110  Ind.  197;  10  N. 
E.  Rep.  299,  and  11  N.  E.  Rep. 
792;  Insui-ance  Co.  v.  Baker,  71 
lud.  103.  2.  The  deed  above  re- 
ferred to  contained  the  following 
clause :  '  The  said  premises  described 
having  been  recently  set  apart  as  a 
homestead  by  the  ordinary  of  Fulton 
county,  Georgia,  to-wit,  in  the  month 
of  April,  1869.'  Counsel  for  the  de- 
fendant in  error  contended  that  'this 
was  homestead  property,  and  eject- 
ment could  not  be  maintained  upon 
that  deed.  Plaintiffs  are  seeking  to 
recover  homestead  property  on  that 
deed,  and  the  constitution  of  1868  de- 
nied to  the  court  the  power  of  ren- 
dering or  enforcing  such  a  judg- 
ment.' Under  the  facts  reported,  the 
principle  contended  for  does  not  ap- 
ply. The  evidence  does  not  show  to 
whom  or  out  of  whose  property  the 
homestead  was  set  apart.  It  does 
not  show  that  Walls  and  his  wife 
ever  occupied  the  land  as  a  home- 
stead, nor  does  it  show  that  they 
ever  resided  in  the  state  of  Georgia; 
but  we  can  infer  that,  if  they  ever 
did  reside  in  Georgia,  they  had  re- 
moved to  the  state  of  Alabama,  be- 


cause the  deed  in  controversy  was 
executed  in  that  state,  and  the  two 
letters  from  Walls,  the  husband,  at- 
tached to  the  motion  for  a  new  trial, 
show  that  he  still  resides  in  Ala- 
bama. If  they  had  never  resided  in 
this  state,  no  homestead  could  have 
been  set  apart  to  them  under  its 
laws.  If  they  had  had  a  homestead 
set  apart  to  them,  and  removed  from 
this  state  to  another,  under  the  rea- 
soning of  the  decision  in  the  case  of 
Bank  v.  Smisson,  78  Ga.  422,  they 
lost  their  homestead  rights  in  the 
property.  If  this  property  was  the 
wife's,  its  homestead  could  not  have 
been  set  apart  to  them  out  of  it 
We  think,  therefore,  that  the  facts 
as  disclosed  by  the  record  could  not 
defeat  the  deed  as  a  conveyance  of 
the  wife's  prior  title  to  the  premises. 
Judgment  reversed." 

1  Morris  v.  Geisecke,  60  Tex.  633. 
See  Newman  v.  Farquhar,  60  Tex. 
640. 

2Townsend  v.  Cowles,  31  Ala.  428; 
Colter  V.  Morgan,  12  B.  Mon.  278; 
Broadwell  v.  Broadwell,  1  Gilman, 
595;  Drew  v.  Clark,  Cooke  (Tenn.), 
374. 

SRamey  v.  Allison,  64  Tex.  697. 
See  Varner  v.  Carson,  59  Tex.  306 ; 
Lott  V.  Kaiser,  61  Tex.  671 ;  Shelby  v. 
Burtis,  18  Tex.  651 ;  Kerr  on  Fraud 
and  Mistake,  p.  69. 

•«  Kocourek  v.  Marak,  54  Tex.  201 ; 
Tarpley  v.  Tarpley,  10  Minn.  458. 


392  KESTRAINT    OF    ALIENATION. 

A  husband,  having  sold  the  family  homestead  without  his 
wife's  joinder,  and  moved  from  it  without  her  consent  (thougli 
she  accompanied  him  as  in  duty  bound),  did  not  thus  destroy 
tier  homestead  right.  Afterwards  they  recovered  possession 
of  the  land  as  their  homestead.^ 

§  8.  Estoppel  by  Sole  Deed. 

The  general  rule  is  that  conveyance  of  homestead  by  the 
husband  alone  is  void  even  as  to  himself.  But  it  has  been 
held  that  it  will  estop  him,  both  at  law  and  in  equity,  from 
setting  up  any  right  or  claim  adverse  to  it;  that  neither  in  his 
own  behalf,  nor  as  the  trustee  or  representative  of  his  wife 
and  children,  can  he  be  heard  to  aver  anything  against  his  own 
solemn  asseverations  in  the  conveyance.  And  it  is  further  held 
that  his  sole  conve3'ance,  when  no  homestead  has  been  set 
apart  and  the  right  to  it  was  inchoate,  0])erates  upon  his  wife 
and  children,  so  that,  during  his  life-time,  they  cannot  claim; 
not  that  they  are  estopped,  but  because  he,  as  their  represent- 
ative, is  estopped,  and  they  cannot  through  him  set  up  any- 
thing adverse  to  his  deed.^ 

The  doctrine  of  estoppel,  as  thus  enounced,  does  not  deny 
the  wife's  right  to  claim  when  her  disabilities  have  been  re- 
moved by  the  death  of  her  husband.  So  long  as  he  remains 
her  legal  representative,  she  cannot  assert  her  own  rights  for 
herself  and  her  children.  But  the  husband  cannot  deprive 
her  of  her  rights  by  conveying  them  by  his  sole  deed ;  cannot 
release  or  waive  her  homestead  right  any  more  than  he  can 
release  her  dower  right.     He  is  estopped  from  denying  his 


>  Myers  v.  Evans,  81  Tex.  317;  16  Mass.  807 ;  Barber  v.  Harris,  15  Wend. 

S.  W.  1060.  615 ;  Pennel  v.  Weyant,  2  Harr.  501  : 

■i  Foss  V.  Strachn,  42  N.  H.  40,  cit-  Currier  v.  Earl,  1  Sliep.  216;  While 

ing  on  the  gentvi-al  doctrine  that  a  v.    Patten,  24  Pick.  324;  Dunbar  v. 

gi-antor  is  estopped  from  denying  his  Mitchel,    12    Mass.     373;     Blake    v. 

deed,    its    covenants    and    recitals.  Tucker,  12  Vt  39.     The  doctrine  of 

8towe  V.  Wyse,  7  Ct.  214;  Wilkinson  Foss  v.  Strachn,  applying  the  usual 

V.  Scott,  17  Mass.  249,  257 ;  Kimball  rule  of  estoppel  to  homestead  cun- 

V.  Blaisdell,  5  N.  K  533 ;  Thorudike  veyances,  was  repeated  in  the  case 

V.  Norris,  24  N.  H.  454;  Wark  v.  Wil-  immediately  followiug,    Strachn    v. 

lard,  13  N.  H.  389;  Brown  v.  Manter,  Foss,  42  N.  H.  43 ;  Guiod  v.  Guiod.  14 

21  N.  H.  528;  Jewell   v.   Porter,   31  Cal.  506;  Bowman  v.  Norton,  16  Cal. 

N.  H.  34;  Johnson  v.  Goss,     N.   H.  219. 
(not  reported) ;  Eveleth  v.  Crouch,  15 


ESTOPPEL    BY    SOLE    DEED.  393 

own  deed,  but  she  can  controvert  it  on  acquiring  legal  stand- 
ing in  court.'  Had  lie  legally  negatived  the  homestead  right 
by  abandoning  the  property  as  a  residence,  or  had  he  trans- 
ferred the  right  from  one  home  to  another  by  exchange,  her 
right  to  claim  homestead  in  the  property  first  held  would  have 
become  extinct  by  such  an  act  of  his.^ 

The  general  law  of  estoppel  does  not  apply,  however,  to  a 
husband  who  has  given  a  deed  of  sale  or  mortgage,  when  tlie 
law  makes  such  act  of  his  absolutel}^  void,  without  his  wife's 
assent,  or  signature  and  acknowledgment.  It  never  applies 
to  acts  that  are  absolute  nullities,' 

The  grantee  of  a  homestead  is  presumed  to  have  notice  that 
the  grantor  has  no  right  to  convey.  He  is  notified  either  by 
the  record  or  by  the  notorious  occupancy  of  the  home  by  the 
grantor  —  one  or  the  other  of  these  two  kinds  of  notice  being 
sufficient  in  any  state  where  sales  of  homesteads  by  a  married 
person  without  joinder  by  the  other  spouse  are  ])rohibited. 
The  grantee  therefore  is  presumed  to  know  the  character  of 
the  property  which  he  purchases.  And  he,  as  all  others,  is 
presumed  to  know  the  law.  So  he  ought  to  be  estopped  as 
well  as  the  grantor.  The  absolute  nullity  of  such  transactions 
relieves  from  the  necessity  of  applying  the  rule  of  estoppel. 
The  husband  alone  cannot  convey.  His  separate  convey- 
ance is  absolutely  void;  void  even  as  to  himself;  and  it  does 
not  operate  as  an  estoppel  to  him.^ 

Beneficiaries  cannot  claim  successfullv  against  a  morto-asree 
who  had  neither  actual  nor  constructive  notice  that  the  prop- 
erty mortgaged  was  subject  to  their  homestead  right.'^  If  he 
has  had  notice,  he  cannot  be  heard  to  attack  the  regularity  of 

1  Wood  V.  Lord,  51  N.  H.  448.  Nolen,   G8  Ala.   4G3 ;    Halso   v.   Sea- 

2  Horn  V.  Tufts,  39  N.  H.  478.  wright,  65  Ala.  431 ;  McGuire  v.  Van 
3Housatonic    Bank    v.    Martin,    1     Pelt,  55  Ala.  344 ;  Miller  v.  Marx,  55 

Met  2U;  Chandler  v.  Ford,  3  Ad.  &  Ala.  333. 

E.  649.  6  Roberts  v.  Eobinson,  63  Ga.  666 ; 

4  Moses  V.  McClain,   83  Ala.   370;  Georgia,  Acts  of  1876,  p.  51;  Code, 

Strauss    v.   Harrison,    79    Ala.   334 ;  §§  3054,  5135 ;  Cheney  v.  Rodgers,  54 

Crim  V.  Nelnis,  78  Ala.  604;  Alford  Ga.  168;  Bonds  v.  Strickland,  60  Ga. 

V.  Lehman,  76  Ala.  536  ;  De  Graff  en-  624;     Willingham    v.    Maynard,    59 

reidv.  Clark,  75  Ala. .425;  Slaughter  Ga.   330;    Roberts   v.    Tramniell,   55 

V.  McBride,  69  Ala.  510;  Seaman  v.  Ga.  383. 


394  EESTEAINT    OF    ALIENATION. 

proceedings  establishing  the  homestead.  A  purchaser,  with 
notice,  cannot  be  heard  for  such  purpose.' 

Both  husband  and  wife  having  absolutely  conveyed  their 
homestead,  she  cannot  claim  successfully  that  the  conveyance 
was  meant  as  a  mortgage,  as  against  a  purchaser  from  a  third 
person  without  notice  of  any  such  intendment."  Their  con- 
tinued residence  upon  the  homestead  was  not  such  a  circum- 
stance as  to  put  such  purchaser  upon  inquiry  as  to  their  re- 
served intention,  when  the  recorded  deed  showed  regular 
transfer.' 

Yet  a  deed  to  a  homestead  which  is  a  complete  conveyance 
on  its  face  may  be  shown  by  parol  to  have  been  given  as  secu- 
rity for  debt,  and  to  convey  no  title.* 

The  requirement  that  both  husband  and  wife  shall  join  in 
the  conveyance  has  been  held  not  satisfied  by  each  making  a 
separate  deed  to  the  same  purport.^  There  seems  to  be  no  es- 
tablished rul3  of  general  authority  on  this  subject.  If  the 
two  deeds  together  are  substantially  one  conveyance,  made  on 
the  same  day  to  the  same  grantee,  with  separate  examination 
of  the  wife  and  due  acknowledgment  by  her,  they  Avould  not 
be  treated  as  nullities  by  every  court. 

Though  the  husband  or  wife  contracts  separately  to  convey 
the  homestead,  or  to  incumber  it,  and  signs  the  instrument  to 
effect  the  purpose,  it  is  held  that  no  damages  can  be  recov- 
ered of  either  for  the  breach  of  such  contract  —  it  having 
been  void  from  its  incipiency.^  Were  such  a  contract  made 
by  the  husband  with  fraudulent  purpose,  the  wrong-doer 
would  doubtless  be  amenable  to  the  law;  but  if  with  the  be- 
lief that  the  wife  would  sign,  he  would  not  be  even  liable  to 
damages  for  the  value  of  land  above  the  contract  price,  on 
failure  to  complete  the  transaction  by  reason  of  her  dissent. 
If  the  price  has   already  been  advanced   by  the   purchaser, 

'  Brown  v.  Driggers,  62  Ga.  354.  5  Dickinson  v.  McLane,  57  N.  H.  31. 

2  Love  V.  Breedlove,  75  Tex.  649.  See  Luther  v.  Drake,  21  la.  92 ;  Poole 

316.;   Heidenheimer  v.  Stuart,   65  v.  Gerrard,  6  Cal  73. 
Tex.  821 ;    Hurt  v.  Cooper,  63  Tex.        6  Barnett  v.  Meudenhall,  42  la.  296 ; 

363 ;  Eylar  v.  Eylar,  60  Tex.  315.   See  Clark  v.  Evarts,  46  la.  348 ;  Cowgell 

Alstine  v.  Cundiff,  52  Tex.  453.  v.  Warrington,  6G  la.  666. 

*  Silberberg  v.  Pearson,  75  Tex.  287 ; 
Brewster  v.  Davis,  56  Tex.  478. 


CONVEYANCE  BY  HUSBAND  TO  "WIFE.  395 

doubtless  he  could  recover  that  from  the  other  party  in- 
competeut  to  convey.^  Or,  if  money  has  been  loaned  on  a 
mortgage  signed  by  the  husband  alone,  resting  on  the  home- 
stead, it  would  be  recoverable  immediately  on  the  ground 
that  the  instrument  is  a  nullity.  A  junior  mortgagee,  finding 
such  an  instrument  impeding  the  recovery  of  his  valid  claim, 
may  have  it  set  aside,  though  the  owners  of  the  mortgaged 
homestead  have  not  sought  to  do  so.^  Specific  performance 
of  a  mortgage  or  sale  by  the  husband  alone  cannot  be  en- 
forced.* But  money  judiciously  expended  for  the  improve- 
nient  and  betterment  of  the  property,  by  a  purchaser  in  good 
faith,  may  be  recovered.^ 

It  is  held  questionable,  however,  whether  the  wife  may  not 
recover  rents  and  profits  from  the  purchaser  for  the  time  he 
has  held  the  homestead  under  such  invalid  conveyance.^ 

§  9.  Conveyance  by  Hnsband  to  Wife. 

Family  protection  being  the  object  of  the  law  wdien  inhib- 
iting alienation,  there  is  no  contravention  of  the  spirit  of  the 
law  when  the  homestead  is  conveyed  to  his  wife,  or  to  his 
wife  and  children,  by  the  owner  who  is  the  head  of  the  family.^ 

A  conveyance  from  husband  to  wife,  with  no  consideration 
but  "love  and  affection,"  was  held  fraudulent  as  to  creditors, 
though  the  latter  could  not  subject  the  homestead  to  the  pay- 
ment of  the  debts  due  them,  by  reason  of  the  fraud.  Had 
both  husband  and  wife  joined  in  conveying  to  a  third  person, 
and  the  latter  had  conveyed  to  her,  they  would  have  lost  their 
homestead  property.^ 

Had  the  husband  conveyed  to  the  wife  directly  to  defraud 
creditors,  while  he  and  she  were  in  the  occupancy  of  quarters 
as  a  homestead  other  than  the  homestead  thus  conveyed,  the 
creditors  would  have  the  right  of  disregarding  the  convey- 
ance.® 

1  Donuer  v.  Redenbaugh,  61  la.  269.     v.   Crouch,   24   Wis.   365.     Compare 

2  Alley  V.  Bay,  9  la.  509.  Hoyt  v.  Howe,  3  Wis.  752,  and  Up- 
SGarlock  v.  Baker,  46  la.  334.  man  v.  Bank,  J5  Wis.  449.     See  Ma- 

4  Stinson  V.  Richardson,  44  la.  373.     lony    v.   Honin,    12    Abb.    Pr.    289; 

5  lb.  Castle  v.  Pahner,  6  Allen,  401 ;  Turner 
«  Albright  V.  Albright,  70  Wis.  528;     v.  Bernheimer  (Ala.),  10  So.  750. 

Dull  V.  Merrill,  69  Mich.  49;  Riehl  v.         'Ruohs  v.  Hooke,  3  Lea,  302. 
B  ngenheimer,  28  Wis.  84;  Murphy        SGibbs  v.  Patten,  2  Lea,  180. 


39G  RESTRAINT    OF    ALIENATION. 

It  is  held  a  meritorious  consideration  for  the  conveyance  of 
a  homestead  by  a  husband  to  his  wife,  that  she  has  a  right  to 
it  at  his  death,  when  there  is  no  child  and  no  one  injured  by 
the  transfer.^  A  reasonable  provision  may  be  made  for  the 
wife's  support,  by  a  conveyance  to  her,  in  the  nature  of  a  set- 
tlement.2 

The  transfer  of  a  homestead  by  a  husband,  for  the  purpose 
of  having  the  grantee  immediately  convey  it  to  the  grantor's 
wife,  which  purpose  w^as  accomplished,  was  judicially  treated 
as  a  direct  conveyance  of  the  husband  to  his  wife:  therefore 
not  vitiated  by  lack  of  her  signature.^  But  when  the  design 
of  preserving  the  homestead  did  not  appear,  in  a  like  trans- 
action, it  was  held  that  the  right  was  lost,  though  both  hus- 
band and  wife  continued  to  occupy  the  dwelling  all  the  while/ 

A  deed  of  a  homestead,  absolute  in  form,  given  by  a  hus- 
band and  his  wife,  when  the  legal  title  was  solely  in  hmi,  to 
secure  a  debt,  and  containing  a  stipulation  by  the  grantee 
that  he  would  reconvey  to  the  wife  upon  receiving  payment 
for  the  debt,  was  construed  as  a  mortgage.^ 

A  wife's  contract  to  convey  her  homestead  cannot  be  spe- 
cifically enforced,  where  the  statute  renders  it  nugatory  with- 
out her  husband's  signature  and  acknowledgment.®  And  a 
husband's  sale,  conveyance  or  incumbrance  is  equally  futile, 
except  with  reference  to  any  excess  of  property  value  above 
the  homestead  allowance.''  Should  he  convey  directly  to  his 
wife,  any  such  excess  would  still  be  open  to  his  creditors.^ 

Though  a  statute  provides  that  "  the  homestead  of  a  mar- 
ried person  cannot  be  conveyed  or  incumbered  unless  the  instru- 
ment by  which  it  is  conveyed  or  incumbered  is  executed  and 

1  Albright  v.  Albright,  70  Wis.  528 ;  tent  to  defraud  creditors.  Dull  v. 
Wis.  R.  S.,  §^5  2203,  2270-2272.     See    Merrill,  69  Midi.  49. 

Leach  v.  Leacli,  65  Wis.  284.  *  Jones  v.  Currier,  65  la.  533. 

2  Hunt  V.  Johnson,  44  N.  Y.  27:  &  McHugh  v.  Smiley,  17  Neb.  626. 
Sims  V.  Rickets,  35  Ind.  181 ;  Wilder  6  Larson  v.  Butts.  22  Neb.  370 ;  Neb. 
V.  Brooks,  10  Minn.  50 ;  Jones V.  Clif-  Com.    Stat,    eh.    36,   §  4;    Swift  v. 
ton,    101    U.   S.    228;    Thompson    v.  Dewey,   20   Neb.    107;    Bonorden  v. 
Allen,  103  Pa.  St.  44.  Kriz,  13  Neb.  121;  Aultman  v.  Jen- 

3 Stevens  v.  Castel,  63  Mich.  Ill;     kins,  19  Neb.  209. 
Hugunin  v.  Dewey,  20  la.  368.     The        '  Swift  v.  Dewey,  20  Neb.  107 ;  Neb. 
conveyance  of  a  homestead  by  a  hus-    act  of  1879,  limiting  to  $2,000. 
band  to  his  wife  is  no  evidence  of  in-        ^  Hick's  Tea  Co.  v.  Mack,  19  Neb. 

339. 


CONVEYANCE    BY    IICSI5AND    TO    "WIFE.  397 

acknowledged  by  both  husband  and  wife," '  yet  the  husband 
alone  may  convey  it  to  his  wife.  If  the  transaction  is  free 
from  fraud,  and  the  rights  of  creditors  and  subsequent  pur- 
chasers are  not  contravened,  there  is  no  necessity  for  both 
husband  and  wife  to  join  in  conveying  to  a  third  person,  that 
such  person  may  then  deed  the  pr()])erty  to  her.  The  direct 
conveyance  is  as  good  as  though  the  title  had  taken  the  cir- 
cumlociitory  course  through  a  third  party  as  trustee.^ 

The  rule  fails  wdien  the  reason  fails.  The  rule  is  that  both 
spouses  shall  join  in  the  conveyance:  what  is  the  reason? 
This  restraint  upon  alienation  is  for  the  protection  of  the 
marital  parties,  especially  the  wife,  and  to  secure  a  home  for 
the  family.  The  children  may  be  unhoused  by  the  mutual 
action  of  their  parents  in  conveying,  but  that  is  not  likely  to 
occur.  To  guard  against  that  danger,  the  approval  of  a  court 
to  such  alienation  or  incumbrance  is  required  in  one  state, 
though  the  others  hold  the  joinder  of  husband  and  wife  in  a 
deed  or  mortgage  sufficient  to  pass  homestead  property,  deem- 
ing this  sufficient  protection  to  their  children. 

The  reason  is  inapplicable  when,  husband  and  wife  holding 
homestead  estate  in  real  property,  the  one  transfers  to  the 
other  his  or  her  legal  title.  Since  the  employment  of  an  in- 
termediary is  futile,  what  utility  can  there  be  in  a  wife's  join- 
ing to  convey  land  to  herself? 

The  common-law  rule  is  contrary  to  this;  the  husband's 
deed,  given  directly  to  his  wife,  being  void.^ 

1  Neb.  Com.  Stat.,  ch.  36,  §  4.  ch.  36,  §4,  are  to  protect  the  husband 

2  Furrow  v.  Athey,  21  Neb.  671 ;  or  wife  who  do  not  join  in  convey- 
Deming  v.  Williams,  26  Ct  226 ;  ing ;  not  for  the  benefit  of  others 
Hunt  V.  Johnson,  44  N.  Y.  27 ;  Gar-  who  are  without  privity  of  interest 
lick  V.  Strong,  3  Paige  (N.  Y.),  452 ;  with  either  of  them.  Cobbey  v. 
Coates  V.  Gerlach,  44  Pa.  St  43 ;  Hu-  Knapp,23Neb.  579.  In  Illinois  the  hus- 
ber  V.  Huber,  10  Ohio,  373;  Brook-  band's  conveyance  of  liis  homestead 
bank  v.  Kennard,  41  Ind.  339 ;  Story  to  liis  wife  really  convej's  to  her  only 
V,  Marshall,  24  Tex.  305;  Wilder  v,  the  excess  above  $1,000  of  value. 
Brooks,  10  Minn.  50;  Baker  v.  Kone-  This  is  held  because  the  statute  for- 
man,  13  Cal.  9 ;  Eddins  v.  Buck,  23  bids  any  transfer  of  the  homestead 
Ark.  507 ;  Reihl  v.  Bingenheimer,  28  without  the  signature  and  acknowl- 
Wis.  84.  edgment  of  both  husband  and  wife. 

3  Johnson  v.  Vandervort,  16  Neb.  111.  Rev.  Stat,  ch.  52,  §  4;  Barrows 
144 ;  Smith  v.  Dean,  15  Neb.  432.  The  v.  Barrows  (111.),  28  N.  E.  983 ;  Kit- 
provisions  of  Neb.  Com.  Stat  (1887),  terlin  v.  Ins.  Co.,  134  111.  647 ;  Gage 


398  RESTRAINT   OF   ALIENATION. 

The  conveyance  of  the  legal  title  from  the  husband  to  the 
wife  does  not  affect  the  homestead  right  when  their  occu- 
pancy of  the  home  continues  as  before.  "  It  is  not  material 
in  which  the  title  may  be."  ^ 

It  does  not  matter  which  owns  the  homestead,  or  which  is 
the  debtor;  the  exemption  operates  alike  in  either  case.^ 

§  10.  Ineiiml)rance  Inhibited. 

Under  constitutional  inhibition  that  no  mortgage,  trust-deed 
or  other  lien  on  the  homestead  shall  be  valid  except  for  pur- 
chase-money or  improvements,  whether  such  incumbrances 
are  created  by  the  husband  alone  or  by  him  and  his  wife,  and 
"  all  pretended  sales  of  the  homestead  involving  any  condi- 
tions of  defeasance  shall  be  void,'"'  no  lien  attaches  when 
both  make  an  absolute  deed  and  then  have  the  homestead 
conveyed  back  to  them  by  the  purchaser  who  reserves  a  mort- 
gage for  unpaid  purchase-money  —  the  object  of  the  two  con- 
veyances being  to  secure  a  loan  made  by  him  to  the  husband 
and  wife.* 

The  lien-holder  cannot  enforce  such  unconstitutional  lien  on 
the  plea  that  he  Avas  misled  by  the  representatives  of  the 
homestead  beneficiaries.^ 

The  inhibition  is  imperative.  It  cannot  be  avoided  by  any 
cunningly  contrived  series  of  conveyances.  It  cannot  be  over- 
come by  the  apparent  passage  of  an  absolute  title  through  any 
number  of  parties.  If  the  circumstances  of  a  circuitous  route 
through  several  grantors  and  grantees  clearly  show  that  the 
purpose  is  to  create  a  lien  on  the  homestead  to  secure  a  loan 
to  the  owners,  the  whole  transaction  will  be  void  as  an  at- 
tempt to  circumvent  the  constitution.^ 

V.  Wheeler,    129  UL   197.     The  hus-  Pierson,  39  111.  447 ;  Crane  v.  Wag- 
band  may  convey  to   his  wife  di-  goner,  33  Ind.   83;    Dwinell  v.  Ed- 
rectly  all  that  is  transferable.    Crum  wards,  23  Ohio  St.  603. 
V.  Sawyer,    132  111.  443;  Thomas  v.  3  Const  Tex.,  art.  16,  §50. 
Mueller,  106  111.  36.       '  *  O'Shaughnessy  v.  Moore,  73  Tex. 

1  McHugh  V.  Smiley,  17  Neb.  626 ;  108 ;  Oilman  v.  Jasper,  70  Tex.  446 ; 
McMahon  v.  Speilman,  1-5  Neb.  653 ;  Moores  v.  Wills,  69  Tex.  109. 

Stout  V.  Rapp,   17  Neb.  462 ;  Partee  » Mortgage  Co.  v.  Norton,  71  Tex. 

V.  Stuart,  50  Miss.  721.  683. 

2  Stout  V.  Rapp,  17  Neb.  462,  470 ;  6  Hays  v.  Hays,  66  Tex.  606 ;  Heid- 
Murray  v.  Sells,  53  Ga.  257 ;  Orr  v.  enheimer  v.  Stewart,  65  Tex.  321 ; 
Shaft,   22    Mich.   260;    Tourville    v.  Inge  v.   Cain,  65  Tex.  75;  Hurt  v. 


INCUMBRANCE   INHIBITED.  399 

Under  some  circumstances,  however,  the  voluntary  creation 
of  a  lien  upon  a  homestead  by  tlie  beneficiaries  would  be  an 
abandonment  of  their  exemption  right,  AVith  that  given  up, 
there  would  be  no  violation  of  the  constitutional  provision 
above  mentioned,  and  the  conveyance  or  mortgage  would 
stand  good  against  the  property.  The  property  may  have  been 
designated  as  a  homestead,  and  preparations  to  occupy  may 
have  been  such  as  to  give  the  property  protection  from  cred- 
itors under  the  decisions,'  yet  if  the  owners  execute  a  mort- 
gage upon  it  before  actual  occupancy,  the  homestead  right 
will  be  deemed  abandoned,  and  the  lien  will  be  valid.-  And, 
when  the  lien  has  attached,  subsequent  claim  of  homestead, 
to  defeat  it,  would  be  vain.' 

While  a  homestead  cannot  be  incumbered  under  the  consti- 
tution as  it  now  exists,  mortg^ao-es  existino^  before  its  dedica- 
tion  may  be  enforced.  A  mortgage  given  on  his  homestead 
by  a  man  to  a  woman,  in  contemplation  of  marriage  with  her, 
and  which  was  recognized  in  his  will  after  their  marriage,  was 
sustained  as  valid,  though  there  was  no  consideration  but  the 
marriage  itself.* 

The  foreclosure  of  a  mortgage  on  a  homestead,  without 
making  the  Avife  a  party,  was  held  void;  but  it  was  declared 
that  if  the  exemption  was  applicable  to  only  an  undivided 
half  interest  in  the  land,  and  the  owner  of  the  other  half  had 
joined  in  giving  the  mortgage,  and  had  afterwards  conveyed 
his  part  to  the  wife,  the  foreclosure  would  hold  good  as  to 
that  half  interest.^ 

Cooper,  63  Tex.  362 ;  Armstrong  v.  by  the  husbaud  or  by  him  and  his 
Moore,  59  Tex.  646.  wife  jointly,  except  for  purchase- 
•  Inge  V.  Cain,  65  Tex.  75 ;  Gardner  money  or  improvements.  By  the 
V.  Douglass,  64  Tex.  76 ;  Morehind  v,  constitution  of  1845,  of  that  state, 
Earnhardt,  44  Tex.  275,  280;  Ander-  art.  8,  §  22,  forced  sales  of  home- 
son  V.  McKay,  30  Tex.  190 ;  Franklin  steads  conveyed  no  right  unless  some 
V.  Coffee,  18  Tex.  413.  further  act  of  transfer  accompanied 

2  Kempner  v.  Comer,  73  Tex.  196 ;  them.  Campbell  v.  Elliott,  53  Tex. 
Jacobs  V.  Hawkins,  63  Tex.  1.  151.     Disti)iguisJied  from  Cross    v. 

3  Potshuisky  v.  Krempkan,  26  Tex.  Evarts,  28  Tex.  523  ;  Brewer  v.  Wall, 
308 ;  Swope  v.  Stantzenberger,  59  23  Tex.  385 ;  Stewart  v.  Mackey,  16 
Tex.  387 ;  Baird  v.  Trice,  51  Tex.  556 ;  Tex.  56. 

Mabry  v.  Harrison,  44  Tex.  286.  By  *  McCormick  v.  Neel,  53  Tex,  15. 
the  constitution  of  Texas,  no  incum-  '  Thompson  v,  Jones,  60  Tex,  94. 
brance  can  be  put  upon  a  homestead 


400  RESTRAINT    OF    ALIKNATION. 

A  mortgagee,  foreclosing  on  a  homestead  and  becoming  the 
purchaser,  cannot  retain  proceeds  above  his  lien  to  satisfy  or- 
dinary debt  due  him  by  the  mortgagor.^ 

"Where  the  mortgage  of  the  homestead  is  inhibited  except 
for  specified  debts,  one  purchasing  his  co-tenant's  interest  can 
mortgage  only  the  part  purchased  —  not  his  original  interest.^ 
When  he  had  mortgaged  his  mterest,  he  afterwards  had  the 
property  partitioned  and  fixed  his  dwelling  on  the  share  allot- 
ted to  him ;  and  it  was  held  that  he  could  claim  it  as  exempt 
from  the  mortgage  he  had  given.  No  mortgage  could  hold 
good,  unless  to  secure  debts  specified  in  the  constitution  as 
exceptional  to  those  exempted.^ 

Where  homestead  mortgages  are  forbidden,  except  for  pur- 
chase-money, etc.,  and  a  mortgagor  seeks  to  avail  himself  of 
the  prohibition,  it  is  incumbent  on  him  to  prove  that  the  mort- 
gaged realty  is  his  homestead.* 

In  exposition  of  a  constitutional  provision  that,  after  the 
homestead  has  been  set  apart,  the  debtor  shall  not  "  alienate 
or  incumber  the  property  so  exempted,  but  it  may  be  sold  by 
the  defendant  and  his  wife,  if  any,  jointly,  with  the  sanction 
of  the  judge  of  the  superior  court  of  the  county  where  the 
debtor  resides  or  the  land  is  situated,  the  proceeds  to  be  rein- 
vested upon  the  same  uses,"^  it  is  held  that  homesteads  can- 
not be  mortgaged.  Both  husband  and  wife  joining,  and  the 
superior  court  nominally  authorizing,  the  mortgage  would  be 
a  nullity.  They  may  sell  by  permission  of  court,  when  the 
price  is  to  go  to  buy  another  home,  but  not  otherwise.  If 
they  obtain  a  loan  on  such  a  mortgage,  they  are  allowed  to 
repudiate  this  securit}^  with  impunity.  A  wife,  who  had  home- 
stead carved  out  of  her  husband's  separate  property,  obtained 
a  loan  on  the  strength  of  it  —  she  waiving  the  exemption 
right.  When  her  note  became  due,  she  failed  to  honor  it;  and 
when  sued  upon  the  mongage  she  set  up  its  invalidity.  Doubt- 
less it  was  worthless  on  the  ground  that  she  did  not  own  a 

1  Hunter  v.  Wooldert,  55  Tex.  433 ;        2SiiTis  v.  Thompson,  39  Ark.  301. 
North  V.  Shearn,  15  Tex.  175 ;  Wood        sSentell  v.   Armor,    35    Ark.   49; 

V.  Wheeler,  11  Tex.  132;  Houghton  Frits  v.  Frits.  32  Ark.  327. 
V.  Lee,  50  Cal.  101 ;  Keyea  v.  Rines,        *  Worsham  v.  Freeman,  34  Ark.  55. 
37  Vt.  260;  Mitchell  v.  Millbraun,  11        »  Const,  of  Ga.,  1877,  art.  9,  g  3. 
Kas.  628 ;  2  Jones  on  Mort,  §  1093. 


INTERESTS    OF    NON-OWNING    BKNKFICTARIES.  401 

foot  of  the  land  she  had  mortgaged.  But  tlic  principal  ground 
on  which  the  plaintifi"  was  kept  out  of  his  money  was  the  al>- 
solute  nullity  of  all  homestead  mortgages  under  the  new  con- 
stitution. Had  the  husband  and  wife  and  the  court  made  tho 
mortgage  sued  upon,  it  would  yet  have  been  an  abortion.  Ad- 
mitting the  title  of  the  property  to  be  still  in  the  husband, 
the  court  said  that  a  new  use  had  been  created  when  it  was 
set  apart  as  a  homestead  by  the  judgment  of  the  ordinary. 
The  use  was  for  the  benefit  of  his  wife  during  her  life,  and 
his  children  during  their  minority.  When  the  use  ceases,  the 
husband  becomes  reinvested  w^ith  all  his  rights  Avhich  existed 
prior  to  the  creation  of  the  use.  (Was  he  divested  of  rights 
before,  by  this  constitution?)  lie  can  then  either  sell  or  mort- 
gage the  land.  "  But,"  says  the  court,  "  so  long  as  the  home- 
stead estate  remains,  he  cannot  sell  without  the  consent  of  his 
wife,  nor  wi^'out  an  order  from  the  judge  of  the  superior 
court,  nor  as  w^e  now  think  can  he  mortgage  it  with  the  con- 
sent of  his  wife  and  with  an  order  of  the  judge  of  the  superior 
court."  Twice  elsewhere  in  the  opinion,  the  nullity  of  all 
homestead  mortgages,  under  the  new  constitution,  is  unqual- 
ifiedly stated.' 

§  11.  Interests  of  Non-owning  Beneficiaries. 

The  right  of  homestead,  existing  before  any  part  of  the 
premises  wiiere  the  beneficiaries  reside  has  been  set  off  so  that 
the  homestead  itself  becomes  something  tangible,  has  been 
treated  as  a  mere  incumbrance,  upon  the  title  of  the  husband- 
owner,  in  favor  of  his  wife  and  children.^ 

The  exemption  right  cannot  exist  apart  from  that  which  is 
exempted ;  cannot  be  separately  conveyed.^ 

The  wife  does  not  become  joint  owner  with  her  husband  in 
the  legal  title  to  the  homestead  upon  their  becoming  joint  oc- 
cupants of  the  home,  for  the  right  of  exemption  which  she 
thus  enjoys  is  not  an  affh^native  property  right  conferred 
upon  her  by  law.*     Her  interest  is  immediate  and  substantial, 

1  Planters'  Bank  v.  Dickinson,  83  Barker  v.  Rollins,  30  la.  412;  Bow- 
Ga  711.  yers  Appeal.  21  Pa.  St  210;  Hewitt 

2  McClary  v.  Bixby,  36  Vt.  260 ;  v.  Tenipleton,  48  III.  367 ;  McDon^d 
Jewett  V.  Brock,  32  Vt.  65 ;  Davis  v.  v.  Ciandall,  43  111.  231. 

Andrews,  30  Vt.  678.  *  Burns  v.  Keas,  21  la.  257. 

3  Chamberlain  v.  Lyell,  3  Mich.  458 ; 

26 


\4 


402  RESTRAINT    OF    ALIENATION. 

and  it  is  secured  against  acts  of  alienation  or  forfeiture  on  the 
part  of  her  husband  which  would  otherwise  prove  fatal  with 
respect  to  his  interest ;  and  she  has  estate  in  the  homestead 
so  far  as  to  be  enabled  to  avail  herself  of  a  statutory  author- 
ization to  redeem  the  property  from  a  tax  sale.^  In  some  re- 
spects her  homestead  right  is  of  a  higher  character  than  that 
of  dower.'^ 

The  wife  and  children  oertainly  have  no  jus  in  re  while  her 
husband,  their  father,  holds  the  full  legal  title  in  fee.  The  ob- 
ject of  requiring  her  signature  to  his  deed  of  conveyance  is 
that  she  may  relinquish  her  homestead  right  just  as  though 
she  were  signing  to  release  her  dower  right.  She  has  no  pres- 
ent title  to  either  dower  or  homestead,  it  is  said ;  certainly 
she  has  no  legal  title  in  her  homestead  right,  though  it  be 
presently  existing.  The  policy  of  the  state,  that  a  home  for 
the  wife  and  children  shall  not  be  alienated  by  the  house- 
holder with  the  same  freedom  which  he  conveys  as  to  the  sale 
of  his  other  property,  is  satisfied  when  he  procures  a  new 
home  for  his  family  and  moves  into  it  wuth  them.  Then  there 
is  n-o  longer  any  incumbrance  upon  the  first  occupied  home. 
Considered  as  an  incumbrance,  the  homestead  right  of  the 
wife  is  novel  indeed.  It  would  be  upon  her  husband's  legal 
estate  and  against  him.  Yet  it  would  be  something  which 
she  could  not  enforce  against  him,  assign  to  a  third  party,  or 
renounce  to  the  prejudice  of  the  children  or  even  herself.  Her 
creditors  could  not  reach  it.  Yet  her  right,  with  all  the  diffi- 
culties admitted,  has  been  treated  as  an  incumbrance  on  her 
husband's  property,  in  her  favor;  and  it  has  been  likened  to  a 
mortgage.'  But  it  is  altogether  unlike  a  mortgage  in  many 
respects.  It  cannot  be  assigned,  or  foreclosed  or  canceled  by 
her.  If  the  homestead  is  carved  upon  her  own  separate  prop- 
erty, and  her  right  remaining  is  in  the  nature  of  a  mortgage,  she 
would  be  both  mortgagor  and  mortgagee  —  which  is  absurd. 

The  decision  above  cited  in  this  section  was  rendered  under 
a  statute  which  has  been  superseded  by  one  whicTi  makes  the 
conveyance  of  his  homestead,  by  a  married  man,  absolutely 
void  unless  the  wife  joins  in  the  deed.* 

When  both  spouses  unite  in  mortgaging  the  legal  title  to  the 

1  Adams  v.  Beale,  19  la.  61.  3  Howe  v.  Adaras,  28  Vt  541. 

«  Chase  v.  Abbott,  20  la,  154  *  Abell  v.  Lathrop,  47  Vt  375. 


OONVETANCK    TO    I'AY    PHIVILEOKD    DEBTS.  403 

land  on  which  their  statutory  right  of  homestead  rests,  thev 
create  equities,  in  favor  of  the  mortgagee,  superior  to  their 
own.  Thereafter,  they  hold  the  legal  estate  as  trustees  of  the 
mortgagee.'  But  the  mortgagee  must  exhaust,  first,  any  prop- 
erty mortgaged  by  them  on  which  the  homestead  right  does 
not  rest,  if  he  holds  two  mortgages  given  by  them,  and  one 
involves  the  homestead  while  the  other  does  not.  The  wife, 
having  signed  both,  is  estopped  from  defeating  the  interests 
she  has  conveyed.^ 

After  mortgages  had  been  satisfied  out  of  the  proceeds  of 
sale,  by  consent  of  junior  judgment  creditors  who  were  parties 
to  the  suit  in  which  the  sale  was  made,  the  owners  of  the  land 
claimed  to  have  homestead  rights  which  they  demanded  should 
be  satisfied  out  of  the  remaining  proceeds.  The  mortgages 
having  been  paid,  the  equitable  "two  fund  doctrine"  was  in- 
applicable to  them,  and  the  junior  lien-holders  —  the  judgment 
creditors  —  were  not  subrogated  to  the  rights  of  the  mort- 
gagees, and  therefore  could  not  resist  the  claim  to  homestead.' 

The  owner  and  his  wife  having  joined  in  a  trust-deed  to 
secure  a  debt,  thus  incumbering  their  homestead,  he  died  and 
she  abandoned  the  occupancy  of  the  home.  The  purchaser  at 
the  trustee  sale  sued  the  heirs  for  possession.  It  Avas  held 
that  his  right  must  be  postponed  to  the  allowance  given  by 
statute  in  lieu  of  homestead,  and  that  he  acquired  no  title.^ 

§  12.  Conveyance  to  Pay  Privileged  Debts. 

The  husband  alone  may  dispose  of  his  own  property,  which 
has  been  dedicated  as  his  homestead,  to  pay  debts  for  which  the 
property  was  liable  before  dedication  and  which  bear  upon  it 

1  Threshing  Machine  Co.  v.  Mitch-  v.  Glidden,  9  "Wis.  46 ;  Darst  v.  Bates, 
ell,  74  Mich.  679 ;  Screiber  v.  Carey,  95  III.  493 ;  Niles  v.  Harmon,  80  111. 
48  Wis.  215 ;  Fairbank  v.  Cudworth,     396 ;  Jones  on  Mort.  §  1633. 

33  Wis,  358 ;  Seatoff  v.  Anderson,  28  3  Ex  parte  Carraway.  28  S.  C.  233 ; 

Wis.  215 ;  Avery  v.  Judd.  21  Wis.  262.  Ex  parte  Kurz,  24  S.  C.  468.     (State 

2  Threshing  Machine  Co.  v.  Mitch-  Bank  v.  Harbin,  18  S.  C.  425.  is  dis- 
ell,  74  Mich.  679;  Bank  v.  Trues-  tinguished  from  the  Carraway  Case.) 
dail,  38  Mich.  440 ;  Sibley  v.  Baker,  <  Abney  v.  Pope,  52  Tex.  288 ;  Mc- 
23  Mich,  312 ;  Searle  v.  Chapman,  Lane  v.  Paschal,  47  Tex.  370 ;  May- 
121  Masa  19;  Hopkins  v.  Wolley,  81  man  v.  Reviere.  47  Tex.  357;  Terry 
N.  Y,  77 ;  Bank  v.  Roop,  80  N.  Y.  591 ;  v.  Terry,  39  Tex.  313 ;  Robertson's 
Patty  V.  Pease,  8  Paige  (N.  Y),  277;  Adin'r  v.  Paul  16  Tex.  472.  See 
White  V.  Polleys,  20  Wis.  503;  Ogden  Saunders  v.  Howard.  51  Tex.  2a 


404  RESTRAINT    OF    ALIENATION, 

afterwards, 'because  there  is  no  exemption  as  to  such  property 
liabilities.^  Even  where  the  wife's  joinder  and  signature  is 
required  in  homestead  alienation,  the  rule  seems  to  be  relaxed 
when  the  purpose  is  to  remove  debts  for  which  the  property 
itself  is  liable.^ 

It  was  held  that  when  there  are  two  mortgages,  and  the  prior 
one  releases  the  homestead  while  the  second  one  does  not; 
and  the  junior  mortgagee  pays  off  the  first  mortgage,  becomes 
therefore  legally  subrogated  to  the  seniors  rights,  and  then 
forecloses  both  mortgages  together  and  buys  the  property  at 
the  sale,  he  gets  title  free  from  the  homestead  claim.'* 

A  mortgage  given  by  a  husband  and  his  wife  on  their  home- 
stead, resting  upon  lots  held  by  them  in  common,  he  cannot 
recover  for  advances  to  pay  it  off  after  her  death,  when  the 
money  was  earned  principally  by  her  minor  children  —  his 
step-children  —  who  lived  with  him  and  w^ere  beneficiaries  of 
the  homestead.* 

Land  already  subject  to  a  lien  does  not  become  relieved  of 
it  by  the  creation  of  the  homestead  estate  upon  it,^as  has  been 
elsewhere  herein  fully  shown  —  exemption  not  interfering 
with  the  vested  rights  of  lien-holders,  and  not  having  any  ref- 
erence to  property  debts. 

The  homestead  may  be  validly  hypothecated  to  secure  a 
joint  note  of  the  husband  and  wife,^  or  of  the  husband  alone,^ 
both  signing  in  either  case.  It  may  be  validly  hypothecated 
to  secure  any  debt  of  theirs  —  there  being  no  restraint  what- 
ever when  both  join  in  the  act. 

Husband  and  wife  may  join  in  deeding  the  homestead  to 
secure  a  loan  from  the  grantee,  without  divesting  themselves 
of  their  homestead  right,  if  they  retain  possession  of  the  prop- 
erty:  the  deed  being  construed  as  a  mortgage.^ 

iHook  V.    Richeson,  115  111.   431;  2  Wood    v.    Lord,   51    N.   H.   448: 

Chappell  V.  Spire,  106  111.  473 ;  Nich-  Burnside  v.  Terry,  51  Ga,  186. 

ols  V.  Overacker,  16  Kas.  59.      {See  3  Ebert  v.  Gerding,  116  111.  216. 

Moore  v.  Reaves,  15  Kas.  150.)  Dillon  4  Capek  v.  Kropik,  129  111.  509. 

V.   Byrne,  5  Cal.  455;  Carr  v.   Cald-  5  Hook  v.  Richeson,  115  111.   431; 

well,  10  Cal.  385 ;  Peterson  v.  Horn-  Chappell  v.  Spire,  106  III.  472. 

blower,  33  Cal.  275 ;  Amphlett  v.  Hib-  6  Low  v.  Anderson,  41  la.  476. 

bard,  29  Mich.  298 ;  Hopper  v.  Par-  7  Rock  v.  Kreig,  39  la.  239. 

kinson,  5  Nev.  233;  Christy  v.  Dyer,  8  McClure  v.  Braniff,  75  la.  3a 
14  la.  438;  Barnes  v.  Gay,  7  la.  26; 
Thui-ston  V.  Maddocks,  6  Allen,  427. 


CHAPTER  XIII. 


RESTRAINT  OF  ALIENATION  —  Continued. 


§  1.  Restraint  —  As  to  Excess. 

2.  Excess  First  Exhausted. 

3.  Sale  of  Interests  in  Homestead 

Property. 

4.  Assignment  of  Homestead. 

5.  ("Conveyance  Strictly  Construed. 

6.  Wife's  Acknowledgment  —  How 

Construed. 


§  7.  Wife's  Joinder  —  In  General 

8.  Leasing,  as  Alienation. 

9.  Exchange  of  Homesteads. 

10.  Proceeds  for    Investment   in  a 

New  Home. 

11.  Proceeds  Held  for  General  Pur- 

poses. 


§  1.  Restraint  —  As  to  Excess. 

The  excess  above  the  quantitative  hmit  is  under  no  restraint 
as  to  sale  or  mortgage.'  The  same  is  true  of  the  excess  above 
the  monetar}'^  limitation.  If  property,  including  the  home- 
stead but  exceeding  the  limit,  be  mortgaged  by  the  husband 
alone,  the  lien  will  be  void  as  to  the  homestead  but  valid  as  to 
the  rest.^ 

It  is  not  always  practicable  to  sever  the  salable  quantity, 
or  the  part  representing  the  excess  of  value,  after  the  whole 
has  been  nominally  sold.  Suppose  forty  acres  to  be  the  limit, 
and  the  farm  including  it  to  consist  of  sixty ;  fifteen  hundred 
dollars  the  monetary  allowance,  and  the  farm  sold  at  three 
thousand  dollars,  or  fifty  per  acre:  manifestly,  it  would  not 
be  just  to  make  the  purchaser  pay  fifty  per  acre  for  the  ex- 
cessive twenty  acres  which  contain  none  of  the  improvements. 

The  validity  of  the  sale  of  the  excess  in  value  or  quantity 
may  depend  upon  the  prior  disseveration  of  that  excess  from 
the  homestead  itself.  If  property  including  the  homestead 
be  sold  and  conveyed  by  one  deed,  how  shall  it  be  known 
what  part  of  the  object  of  the  contract  was  legally  conveyed  ? 


1  Pardee  v.  Lindley,  31  111.  174,  187 ; 
Barrett  v.  Wilson,  102  111.  302 ;  Hait 
V.  Houle,  19  Wis.  472. 

2  Boyd  V.  Cudderback,  31  111.  113; 
Smith  V.  Miller.  31  111.  161 :  Coe  v. 
Smith,  47  111.  225 ;  Black  v.  Lusk,  69 


111.  70 :  Reid  v.  McGowan.  28  S.  C.  74 : 
Bank  of  La.  v.  Lyons,  52  Miss.  181 : 
Johnson  v.  Poullain,  62  Ga.  370  ;  Clark 
V.  Allen,  87  Ala.  198;  Wallace  v.  Har- 
ris. 32  Mich.  398;  Ring  v.  Burt,  17 
Mich.  463. 


406  RESTRAINT    OF    ALIENATION. 

By  what  mode  shall  the  contracting  parties  sever  the  proper 
quantity,  reserved  under  the  law,  from  the  excess?  How  shall 
fifteen  hundred  dollars'  worth  of  homestead  be  singled  out 
from  the  overplus  so  as  to  leave  the  family  undisturbed  in  its 
exact  rights  and  privileges?  Under  the  hammer  of  an  official 
auctioneer,  the  whole  of  indivisible  property  may  be  sold,  and 
the  exempt  part  of  the  price  handed  over  to  the  beneficiary. 
But  the  private  sale  of  the  homestead  portion  being  void, 
there  seems  to  be  no  method  devised,  of  universal  acceptance, 
by  Avhich  the  beneficiary  of  a  limited  homestead  can  volun- 
tarily sell  real  estate  including  it  without  first  effecting  parti- 
tion.^ If  the  homestead  has  been  marked  off  by  metes  and 
bounds,  and  the  declaration  thereupon  duly  recorded,  there 
would  be  means,  after  sale  of  that  with  more  land,  by  which 
the  excess  could  be  severed  from  the  mass,  and  the  convey- 
ance would  be  good  as  to  all  but  the  homestead,^  unless  the 
purchaser,  in  consideration  of  the  dwelling-house  and  im- 
provements, has  been  misled  to  give  more  per  acre  than  he 
would  have  given  for  the  excess. 

If  not  defrauded,  and  not  disposed  to  give  up  his  purchase 
for  the  reason  above  stated,  the  purchaser,  buying  the  excess 
while  yet  intermingled  with  the  exempt  portion  of  acres,  or 
value,  may  resort  to  a  court  of  equity  to  have  his  exact  pur- 
chase determined.* 

In  most  of  the  states,  the  sale  of  the  homestead  by  the 
sheriff  upon  execution  is  nugatory  and  the  title  void,  if  the 
property  is  not  in  excess  of  the  statutory  limitation  of  value.* 
And  it  is  generally  true,  that  a  sale  by  the  husband,  under 
such  circumstances,  is  void ;  the  states  which  have  no  restraint 
are  few.  And  the  rule,  both  with  regard  to  sheriff's  sale  and 
private  sale  by  the  husband,  is  that  the  title  given  thereunder 
is  void  when  there  is  no  excess  of  quantity  or  value  in  the 
homestead, 

A  sale,  with  reservation  of  the  homestead,  conveys  the  ex- 

•  Rhyne  v.  Guevara,  67  Miss.  139 ;  Dye  v.  Mann,  10  Mich.  291 ;  Black  v. 

Richards  v.  Chace,  2  Gray,  383.  Lusk,  69  111.  74 ;  Brown  v.  Coon,  36 

-'Winn   V.  Patterson,   9   Pet.   663;  III.   247;    Pardee  v.   Lmdley,   31  IlL 

Danforth  v.  Wear,  9  Wheat.  673.  187 ;  Smith  v.  Miller.  31  111.  161. 

3  Bank   of  La.    v.  Lyons,   52  Miss.  ■»  Barrett  v.  Wilson,  102  111.  302. 
184;    Ring   v.    Burt.    17    Mich.   465; 


RESTRAINT AS    TO    EXCESS.  407 

cess;  but  that  excess  must  be  subsequently  ascertained;  and, 
if  there  be  none,  nothing  is  convoyed ;  and  the  vendee,  who 
has  paid  the  price,  is  entitled  to  have  it  returned  to  him. 

When  a  mortgage  is  given  on  land  out  of  which  a  home- 
stead is  to  be  taken  by  the  mortgagor,  and  it  is  reserved  from 
the  operation  of  the  mortgage  but  is  undefined,  the  extent 
of  the  reserved  portion  must  be  ascertained  judicially  before 
the  foreclosure  of  the  mortgage.'  Just  as  in  case  of  sale, 
with  like  reservation,  nothing  is  mortgaged  if  there  be  no  ex- 
cess above  the  homestead  limitation ;  the  mortgagee  gets 
nothing,  and  is  entitled  to  have  his  money  returned  if  he  has 
paid  any  on  the  supposed  or  contingent  mortgage.  And  the 
rule  would  be  the  same,  if  he  had  advanced  the  money  under 
a  judicial  order;  for,  if  he  get  nothing,  he  is  entitled  to  have 
his  money  back  in  this  case  as  in  the  other. 

There  would  be  no  meaning  in  a  relinquishment  of  the 
homestead  right  in  a  mortgage  given  before  the  existence  of 
such  right.  To  plead  in  defense  to  an  action  to  foreclose 
that  the  land  is  a  homestead  is  irrelevant.  The  plea,  to  be 
effective,  should  be  that  the  land  was  a  homestead  when  the 
mortgage  was  given.^  For  it  could  not  be  made  such  to  the 
prejudice  of  the  mortgagee  after  the  lien  had  been  fastened 
upon  the  land,  in  his  favor.  The  defense,  that  the  land  was 
a  homestead  when  the  mortgage  was  given,  is  the  same  as  to 
plead  the  invalidity  of  the  mortgage. 

A  debtor  mortgaged  his  plantation,  describing  it  by  metes 
and  bounds,  and  also  describing  it  as  consisting  of  two  hun- 
dred acres.  It  proved  to  embrace  forty-two  acres  more,  and 
he  claimed  homestead  in  the  excess;  but  it  was  denied  him. 
It  was  said  that  the  claimed  portion  of  land  was  within  the 
boundaries  described,  and  there  was  no  distinct  reservation; 
that  a  homestead  cannot  be  carved  out  of  the  entire  tract  as 
against  the  lien  imposed  by  the  mortgage.'  This  case  mvolved 
no  question  as  to  the  validity  of  the  mortgage  given  to  the 
extent  of  two  hundred  acres.  Had  not  the  land  been  de- 
scribed by  metes  and  bounds,  only  the  stated  acreage  would 
have  been  mortgaged,  and  there  might  have  been  homestead 
allowed  in  the  forty-two  acres  of  excess. 

1  Adger  v.  Bostwick,  12  S.  C.  64  »  Reid  v.  McGowan,  28  &  G  74 

^Symonds  v.  Lappin,  82  IlL  213. 


408  RESTRAINT   OF   ALIENATION. 

A  debtor  may  sell  his  homestead  free  from  liens  bearing  on 
his  other  lands;  and  if  he  sell  all  together,  the  grantee  will 
get  an  equitable  title  to  the  number  of  acres  exempt,  even 
though  all  may  have  been  subsequently  sold,  by  a  creditor  of 
his  grantor,  under  execution.  He  may  still  have  the  exempt 
quantity,  which  he  bought,  carved  out  of  the  whole.'  The 
execution  sale  is  void,  as  to  the  homestead,'"^  under  such  cir- 
cumstances, while  the  private  sale  by  the  debtor  is  good, 
where  he  is  not  restrained  from  selling  alone.  And  w^iere 
the  wife's  cjoncurrence  is  necessary  and  is  given,  the  sale  of 
the  homestead  is  good,  under  like  circumstances. 

Where  the  method  of  dedicating  homestead  is  only  visible 
occupancy,^  right  of  exemption  begins  from  the  date  of  occu- 
pancy, whether  there  has  been  special  selection  or  setting 
apart  of  the  portion  exempt  or  not.  The  excess  above  the 
limit  is  still  alienable,  and  still  liable  for  debt,  and  still  subject 
to  administration  upon  the  death  of  the  householder  if  the 
executor  or  administrator  then  has  the  homestead  separated 
from  it.  If  he  neglects  this,  and  the  widow  continues  to  oc- 
cupy the  whole,  she  must  pay  the  taxes  and  bear  expenses  on 
the  whole.* 

It  seems  that  a  wife,  induced  to  join  her  husband  in  the 
mortgage  of  their  homestead  by  the  promise  of  the  mortgagee 
that  he  would  convey  other  property  to  her  husband,  cannot 
be  deprived  of  her  homestead  by  foreclosure  of  the  mortgage 
when  that  promise  has  not  been  fulfilled.  If  the  only  consid- 
eration of  the  note  and  mortgage  was  the  promise  of  the  mort- 
gagee to  make  the  conveyance,  and  he  never  did  this  or  offered 
to  do  it,  he  cannot  enforce  the  collection  of  the  note  and  mort- 
gage upon  any  equitable  principle.  There  would  be  no  con- 
sideration for  the  mortgage.  The  mortgagor  ought  to  be 
allowed  to  compel  com])liance  on  the  part  of  the  mortgagee; 
but,  not  doing  so,  the  latter  ought  not  to  be  allowed  to  foreclose. 

Where  an  "  estate  of  homestead "  is  created  by  statute  in 
place  of  "  homestead  exemption  "  under  a  former  law,  an  ex- 
cess above  the  statutory  limitation  of  homestead  value  is  still 

'Clark  V.  Allen,  87  Ala.  198.  » Ferguson    v.   Kumber,  25    Minn. 

«/').;  Clark  v.  Spencer,  75  Ala.  49;  183;  Barton  v.  Drake,  21  Minn.  299. 

De  Graffenreid  v.  Clark.  75  Ala.  425 ;  <  Wilson  v.  Proctor,  28  Minn.  13. 
Hardy  v.  Sulzbacker,  G2  Ala.  44. 


KESTRAINT  —  AS    TO    EXCESS.  409 

liable  to  forced  sale.  The  provisions  of  the  two  statutes  are 
held  virtually  alike  in  this  respect.^  kSo,  a  householder,  whose 
residence  was  worth  iifty  thousand  dollars,  was  not  protected 
from  execution  as  to  forty-nine  thousand  of  its  value.  The 
"estate  of  homestead  "  was  one  thousand  dollars'  worth  of  the 
whole.  Tliis  could  be  sold  or  conve\'ed  by  him  only  in  the 
way  pointed  out  by  the  statute;  but  there  was  no  restraint 
upon  his  alienation  of  the  rest.  lie  did  contract  to  sell  his 
residence;  and,  on  the  purchaser's  subsequent  consent  to  ac- 
cept a  deed  subject  to  homestead  right  of  one  thousand  dol- 
lars, the  court  held  the  transaction  valid  though  the  grantor's 
wife  did  not  sign  the  deed.'^ 

A  judgment  lien  does  not  attach  to  a  homestead  sold  in 
good  faith  by  its  owner.  But  if  the  sale  is  merely  colorable, 
made  for  the  purpose  of  acquiriiig  a  new  homestead  and  to 
enable  the  vendor  to  avail  himself  virtually  of  the  exemption 
of  two  homesteads,  the  lien  would  attach  —  if  the  new  home- 
stead has  been  acquired  not  with  the  j)roceeds  of  the  one  sold.' 

The  right  to  sell  is  not  questioned ;  the  point  is  that  there 
Avas  no  sale  under  the  circumstances.  Having  bought  a  new 
homestead,  the  owner  could  not  have  exemption  as  to  that 
and  yet  have  it  in  the  other  which  had  not  been  really  dis- 
posed of  to  get  means  of  buj'ing  the  new  one. 

The  urban  homestead,  where  it  is  not  limited  in  area  but  in 
value,  cannot  be  sold  on  execution  by  the  sheriff  so  as  to  con- 
vey any  excess.  He  must  have  the  homestead  laid  oif,  and 
then  sell  the  excess.  If,  however,  the  debtor  has  his  residence 
on  one  side  of  a  street,  and  an  orchard  or  like  property  on  the 
other  which  he  has  rented  to  a  tenant,  the  latter  may  be  sub- 
jected to  execution.'*  The  renting  of  the  portion  subjected  to 
execution  may  be  treated  as  an  abandonment  of  the  homestead 
right  in  it.  Even  if  the  residence  portion  was  not  worth  the 
maximum  which  the  law  allow^s  to  a  homestead,  the  other 
part,  devoted  to  other  than  homestead  use,  may  be  subject  to 

1  Watson  V.  Doyle,  130  111.  415,  #^;  Carhart  v.  Haishaw,  45  Wis.  340, 347 ; 
Moriarty  v.  Gait,  113  111.  377;  Brown-  Schoffen  v.  Landauer,  CO  Wis.  334. 
ing  V.  Harris,  99  111.  462  ;  Eldridge  v.         *  Code  of  Miss.  (1880),  ^  1251 ;  Ehyne 
Pierce,  90  111.  478.  v.  Guevara,  67  Miss,  139 ;   Lazar  v. 

2  Watson  V.  Doyle,  supra.  Caston,  67  Miss.  275. 
» Carver  v.  Lassallette,  57  Wis.  283 ; 


410  KESTKAINT   OF   ALIENATION. 

execution.     There  seems  to  be  no  reason  for  confining  this 
rule  to  urban  homesteads. 

If  there  are  surplus  proceeds  from  the  foreclosure  of  a  mort- 
gage given  by  husband  and  wife  on  land  in  which  they  had 
homestead  right,  that  right  attaches  to  the  surplus,  and  the 
court  may  direct  these  proceeds  to  be  invested  in  a  new  home- 
stead for  them.^  They  are  entitled  to  this  as  against  the  gen- 
eral creditors  of  the  husband.^ 

§  2.  Excess  First  Exhausted. 

By  the  law  of  several  states,  when  the  homestead  has  been 
legally  mortgaged  with  other  property,  it  cannot  be  sold  till 
all  the  rest  has  been  exhausted ;  and  the  mortgagor  may  re- 
quire the  enforcement  of  his  right  in  this  respect.^  When 
homestead,  with  other  property,  is  made  security  otherwise 
than  by  mortgage,  the  same  order  of  sale  is  observed.* 

This  requirement  is  made  in  tender  and  commendable  solic- 
itude for  the  preservation  of  homes,  pursuant  to  the  policy  of 
the.  law.  If  the  realty,  in  excess  of  the  homestead,  is  sufficient 
to  satisfy  the  mortgage,  the  creditor  cannot  complain  of  this 
order  of  proceeding  to  foreclose.  If  a  senior  mortgagee  has 
been  satisfied,  and  yet  some  of  the  excess  remains  unsold,  a 
junior  is  required  to  exhaust  it  before  selling  the  homestead.^ 
And  this  would  be  required  of  any  mortgagee,  whatever  his 
rank,  wherever  this  rule  of  law  prevails. 

The  right  of  the  homestead  mortgagors  to  have  other  prop- 
erty, included  in  the  same  mortgage,  exhausted  before  the 
homestead  be  sold,  ma}''  be  supported  by  reason,  in  the  ab- 

1  White  V.  Fulghum,  87  Tenn.  281 ;  178;  Dickson  v.  Chorn,  6  la.  19;  Fo- 
Bentley  v.  Jordan,  3  Lea,  353 ;  Fauver  ley  v.  Cooper,  43  la.  376 ;  Butler  v. 
V.  Fleenor,  13  Lea,  624.  Stainback,  87  N.  C.  216,  ffO;  Wilson 

2  Ih.;  Gilliam  v.  McCormack,  85  v.  Patton,  87  N.  C.  318,  324;  McAr- 
Tenn.  609;  Gwynne  v.  Estes,  14  Lea,  thur  v.  Martin,  23  Minn.  74;  Horton 
673.  Contra,  Parr  v.  Fumbanks,  11  v.  Kelly,  40  Minn.  193;  Dunn  v.  Buck- 
Lea,  392.  ley,  56  Wis.  192 ;  Lloyd  v.  Frank,  30 

3  Frick  Co.  v.  Ketels,  42  Kas.  527 ;  Wis.  306 ;  White  v.  Polleys,  20  Wis. 
La  Rue  v.  Gilbert,  18  Kas.  220 ;  Colby  530 ;  Jones  v.  Dow,  18  Wis.  253 ;  Lay 
V.  Crocker,  17  Kas.  527;  Marr  v.  v.  Gibbons,  14  la.  377 ;  Boyd  v.  Ellis, 
Lewis,  31  Ark.  203 :   Ray  v.   Adams.  11  la.  97. 

45  Ala.  168 ;  Bartholomew  v.  Hook,        <  Spear  v.  Evans,  51  Wis.  42 ;  Dunn 

28  Cal.  277 ;  McLaughlin  v.  Hart.  46    v.  Buckley,  sitpm. 

Cal.  638 ;    Brown  v.  Cozard,  68   111.        5  Armitage  v.  Toll,  64  Mich.  412. 


EXCESS    FIEST    EXIIAL'STED.  411 

sence  of  any  statute  expressly  conferring  it.  It  is  a  proper 
presumption,  that  the  husband  and  wife,  when  joining  to  create 
a  lien  upon  land  exceeding  the  homestead  yet  including  it,  or 
an  unmarried  householder  when  doing  so,  did  not  design  to 
render  themselves  homeless  unnecessarily.  If  the  other  prop- 
erty should  prove  suthcient  to  satisfy  the  mortgage,  they 
would,  as  a  general  rule,  mean  that  their  home  remain  undis- 
turbed. 

On  the  other  hand,  it  may  be  fairly  assumed  that  the  mort- 
gagee understood  this.  Ordinarily,  a  mutual  understanding 
to  this  effect  would  be  inoperative  w'ithout  its  expression  as  a 
part  of  the  agreement;  but,  where  the  homestead  is  involved, 
both  parties  know  the  beneficent  spirit  of  the  law  governing 
contracts  which  affect  it. 

The  exemption  right  is  not  wholly  and  certainly  waived  by 
the  hypothecation  of  the  homestead  with  other  property  to 
secure  debt ;  it  is  only  contingently  waived ;  the  property 
only  subjected  to  lien  on  the  happening  of  a  future  event :  the 
failure  of  the  other  property  to  satisfy  the  debt.  For,  besides 
the  mortgagor  and  mortgagee,  there  is  another  party:  the 
state,  whose  policy  is  to  protect  homes.  This  qualification  of 
waiver  may  be  said  to  exist  wherever  the  law  requires  the  ex- 
haustion of  other  property  before  the  homestead  when  both 
have  been  mortgaged  together,  if  the  mortgagors  require  it. 

Can  a  junior  mortgagee  require  a  senior  to  exhaust  the 
homestead  to  satisfy  the  first  mortgage  which  rests  on  that 
and  more  land,  that  the  junior  may  make  his  money  out  of 
the  excess  which  is  all  that  his  mortgage  covers? 

A  husband  and  wife  duly  mortgaged  their  homestead  and 
more  land.  Subsequently,  the  husband  alone  put  a  second 
mortgage  upon  the  land  excepting  the  homestead.  The  senior 
mortgagee  foreclosed  and  made  the  junior  and  certain  judg- 
ment creditors  parties  to  the  proceeding.  These  parties  con- 
tended that  he  ought  to  satisfy  his  lien  from  the  homestead 
portion  and  leave  the  rest  for  them,  to  satisfy  their  claims. 

The  homestead  right  is  such  an  interest  as  entitles  the  ben- 
eficiary owning  it  to  require  the  exhaustion  of  other  property 
of  his,  incumbered  with  it,  to  be  first  exhausted.  It  is  such 
interest  in  the  real  estate  of  the  married  householder  that  it 
will  vest  in  the  marital  survivor  for  life  and,  in  the  heirs  of 


412  rp:straint  of  alienation. 

the  deceased  owner,  forever.  It  is  exempt  from  execution  for 
the  benefit  of  the  owner's  family.  It  is  alienable  by  the  mar- 
ried owners  alone.' 

There  is  a  principle  that  a  lien-holder  having  choice  of  two 
funds,  one  of  Avhicli  is  subject  to  the  lien  of  another  creditor, 
ought  in  equity  to  proceed  against  the  one  upon  which  the 
other  creditor  has  no  claim  (if  it  be  sufficient),  so  as  to  give 
the  latter  a  chance  to  make  his  money. 

This  principle  cannot  be  invoked  to  the  injury  of  the  cred- 
itor holding  a  lien  on  the  double  fund,  or  of  the  common 
debtor,  or  (as  in  this  case)  of  the  homestead  beneficiaries.^ 

Unless  there  is  statutory  direction,  it  is  not  an  invariable 
rule  that  the  senior  mortgagee  must  exhaust  the  homestead 
last.  It  has  been  held  that  when  a  mortgage  covers  the 
homestead  Avith  other  lands,  the  mortgagee  cannot  be  com- 
pelled, by  another  judgment  creditor,  to  exhaust  the  home- 
stead lirst.^  Though  such  creditor's  judgment  may  be  a  lien 
on  land  other  than  the  homestead,  out  of  which  he  could  make 
his  money  if  the  other  creditor,  holding  a  mortgage  on  that 
and  the  homestead  too,  could  be  required  to  look  only  to  the 
latter,  yet  he  is  powerless  to  compel  such  course.  He  may 
.  have  nothing  left  to  proceed  against  after  the  first  judgment 
or  mortgage  has  been  satisfied,  w^hile  the  debtor  retains  his 
homestead. 

This  order  of  procedure  is  statutor}'.  The  rule  may  be 
stated  thus:  A  mortgagee  of  the  homestead  cannot  be  com- 
pelled by  other  creditors  of  the  mortgagor  to  exhaust  other 
property  covered  by  the  same  mortgage  before  foreclosing  the 
homestead,  unless  so  required  hy  statute.  He  may  exhaust  the 
homestead  first,  if  he  chooses ;  he  may  relinquish  his  lien  upon 
all  but  that,  if  he  chooses ;  and  neither  the  debtor  himself,  nor 
his  wife  as  co-mortgagor,  nor  any  of  his  judgment  creditors, 
can  control  the  mortgagee  in  this  matter.* 

1  Comp.  Stat,  of  Nebraska,  cli.  36,        3  La  Rue  v.  Gilbert,  18  Kas.  220. 

§  17;  Bonorden  v.  Kriz,  13  Neb.  121.        ^  witherington  v.  Mason,  86  Ala. 

2  McCreery  v.  ScliafTer,  36  Neb.  173 ;     345 :    Vancleave  v.  Wilson,   73  Ala. 
.Colby  V.   Crocker,   17  Kas.  527;  La    387;  Seaman  v.  Nolen,  68  Ala.  463; 

Rue  V.  Gilbert,  18  Kas.  220;    Brown  White  v.  Polleys,  20  Wis.  530;  Chap- 

V.  Cozard,  68  111.  178 ;  McLaughlin  v.  man  v.  Lestei-,  12  Kas.  592 ;  Seale  v. 

Hart,  46  Cal.  638 ;  McArthur  v.  Mar-  Chapman,   121   Mass.   19;   Brown  v. 

tin,  23  Mina  74.  Cozard,  68  IlL  178. 


KXCESS    FIRST    EXHAUSTED. 


413 


A  judgment  creditor  may  require  a  homestead  to  be  first 
exhausted  by  a  mortgagee  whose  mortgage  covers  that  and 
other  realty,  if  it  was  dedicated  as  a  homestead  after  his  judg- 
ment had  been  obtained.^ 

The  exempted  amount  in  homestead  cannot  be  claimed  from 
the  proceeds  of  two  tracts,  one  of  which  was  ncjt  tiie  home- 
stead, after  both  have  been  sold  under  vendor's  lien,  and  noth- 
ing remained  over  from  the  homestead  sale.'- 

There  is  no  homestead  against  valid  liens.  Proceeds,  to  be 
exempt,  must  be  in  excess  of  what  was  required  to  satisfy 
the  lien  or  liens  on  the  homestead.  If,  though  there  was  no 
excess  of  homestead  proceeds,  there  was  excess  of  proceeds 
from  the  sale  of  the  other  property  which  was  sold  at  the 
same  time,  that  excess  would  belong  to  the  debtor,  but  not  as 
homestead  proceeds.  It  would  not  be  exempt  upon  attack  by 
another  judgment  creditor. 

When,  on  the  foreclosure  of  a  mortgage,  the  debtor's  land 
was  first  exposed  to  sale  in  separate  tracts  but  had  no  bid, 
and  then  the  whole  including  the  homestead  was  sold  to- 
gether, it  was  held  that  the  law  requiring  the  exhaustion  of 
other  lands  before  the  homestead  had  been  observed  by  the 
first  offerinof.' 


1  Bowen  v.  Barksdale,  33  S.  C.  142 ; 
State  Bank  v.  Harbin,  18  S.  C.  425. 

2Hayden  v.  Robinson,  83  Ky.  615. 

3  Brumbaugh  v.  Shoemaker,  51 
Iowa,  148 ;  50  N.  W.  493.  Rothrock, 
J. :  "  1.  The  counsel  for  appellant  in 
their  argument  say:  'No  claim  is 
made  that  the  homestead  was  ever 
platted  or  recorded  by  the  sheriff. 
The  fact  that  the  sheriff  offered  the 
one  hundred  and  sixty  acre  tract  in 
forties,  ending  with  that  on  wiiich 
Brumbaugh  lived,  and  received  no 
bid,  is  claimed  to  have  been  a  sub- 
stantial compliance  with  the  statute.' 
In  answer  to  this  proposition,  coun- 
sel cite  us  to  Linscott  v.  Lamart,  46 
Iowa,  312,  and  White  v.  Rowley,  id. 
680.  These  cases  are  not  analogous 
to  the  case  at  bar.  In  Linscott  v. 
Lamart  it  was  held  that  the  sale  was 


void  because  tlie  sheriff  sold  a  part 
of  the  homestead  in  satisfaction  of 
an  execution  for  which  the  home- 
stead was  not  in  any  event  liable.  In 
this  case  the  homestead  was  liable 
after  exhausting  the  other  land  em- 
braced in  the  decree  of  foreclosure. 
In  White  v.  Rowley  the  execution 
was  for  a  debt  contracted  after  the 
homestead  right  accrued.  The  home- 
stead was  in  no  event  liable  for  the 
debt.  There  was  a  dispute  as  to  the 
boundaries  of  the  homestead.  The 
plaintiff  attempted  to  make  a  selec- 
tion different  from  the  government 
subdivisions,  and  claimed  that  the 
sheriff  levied  upon  and  sold  part  of 
the  homestead.  Under  these  circum- 
stances, it  was  held  that  it  was  the 
duty  of  the  sheriff  to  have  caused  the 
lioraestead  to  be  platted.     It  will  be 


414  KESTEAINT    OF    ALIENATION. 

§  3.  Sale  of  Interests  in  Homestead  Property. 

'Real  estate,  jointly  owned  by  one  Parks  and  his  son,  and 
occupied  by  the  former  and  his  wife  to  the  time  of  his  death, 
had  been  conve3'ed  by  the  joint  owners  to  a  daughter  of 
Parks,  though  the  wife  did  not  join  in  the  conveyance,  and 
though  he  remained  in  possession.  Upon  the  death  of  both 
parents,  the  daughter  conveyed  to  one  Bolton.  Meanwhile, 
creditors  of  Parks'  sons  had  obtained  judgment  against  them. 
Bolton  knew  of  this  judgment  when  he  bought  the  property, 
and  of  the  occupancy  of  the  homestead  by  Parks,  after  selling 
to  his  daughter,  to  the  time  of  his  death. 

Bolton  brought  an  action  in  equity,  against  the  judgment 
creditors,  to  quiet  his  title.  It  was  held  that  Parks'  undivided 
interest  in  the  homestead  property  was  not  conveyed  to  his 
daughter,  because  his  wife  did  not  join  in  the  conveyance;^ 
that  the  creditors,  as  judgment  lien-holders,  had  the  right  to 
question  the  conveyance,  though  Parks'  heirs  had  not  done 
so;  that  his  undivided  interest  had  descended  to  his  wife  and 
children ;  that  the  judgment  was  a  lien  on  the  shares  of  the 
two  sons  who  were  the  judgment  debtors;  that  those  shares 

observed  tliat  the  plaintilT  in  that  separate  tracts,  and  endeavoring 
case  supposed  that  the  selection  he  thus  to  sell  before  offering  and  selling 
had  made  was  valid,  and  there  was  a  in  a  body,  was  exhausting  the  other 
dispute  as  to  what  constituted  the  property,  within  the  meaning  of  sec- 
homestead.  In  the  case  at  bar  there  tion  2281  of  the  revision.  The  same 
was  no  dispute.  The  plaintiff  avers  rule  was  followed  in  Eggers  v.  Red- 
that  a  certain  quarter  of  the  quarter  wood,  50  Iowa,  289.  We  are  content 
section  was  his  homestead  and  that  with  the  reasoning  and  the  conclu- 
defendant  knew  it  when  he  made  sion  reached  in  those  cases,  and  are 
the  purchase.  It  is  not  a  case  where  not  disposed  to  overrule  them.  What 
the  boundaries  of  the  homestead  were  we  hold  is  that  the  sale  is  not  void, 
in  dispute.  The  precise  question  pre-  and  cannot  be  set  aside  upon  the  aver- 
sented  in  this  case  was  determined  in  ments  made  in  this  petition.  Whether 
Burmeister  v.  Dewey,  27  Iowa,  468.  the  sheriff  would  be  liable  in  a  proper 
where  it  was  held  that  a  sheriflTs  sale  proceeding  for  a  misapplication  of  a 
in  foreclosure  of  a  mortgage  should  part  of  the  purchase-money  we  do 
not  be  set  aside  where  the  sheriff  not  determine,  because  he  is  not  a 
first  offered  the  land  in  forty-acre  party  to  this  action,  and  no  relief  is 
tracts,  according  to  the  government  asked  against  him.  Affirmed." 
subdivisions,  and,  receiving  no  bids,  i  Iowa  Code,  §  1990;  Belden  v. 
then  offered  and  sold  the  whole  of  Younger,  76  la.  507 ;  Barnett  v.  Men- 
the  lands,  including  the  homestead,  denhall,  42  la.  296 ;  Alley  v.  Bay,  9 
It  was  there  held  that  offering  the  la.  509. 
lands  other  than  the  homestead  in 


SALE    OF    INTEIIKSTS    IN    HOMESTEAD    I'ROrERTY.  415 

had  been  rightfully  sold  under  execution  to  enforce  the  judg- 
ment; and  that  Bolton,  being  chargeable  with  knowledge, 
was  not  an  innocent  purchaser  as  to  those  shares,  and  there- 
fore could  claim  no  priority  over  the  judgment  creditors.' 

The  professional  reader  "will  perceive  that  this  deliverance 
recognizes  that  homestead  right  may  exist  in  property  held 
by  joint-tenancy.  In  states  where  this  cannot  be,  such  a 
transaction  as  that  detailed  above  would  have  a  different  legal 
result.  The  sale  by  Parks  and  his  son  would  have  conveyed 
the  wdiole  property  to  the  daughter ;  the  sale  by  her  to  Bolton 
would  have  given  all  to  him,  and  his  suit  to  quiet  title  would 
have  prevailed. 

A  verbal  agreement  for  the  transfer  of  a  homestead,  assented 
to  b}'  both  husband  and  wife,  followed  by  giving  possession 
and  performing  the  agreement,  has  been  held  to  convey  equi- 
table title.^  And  when  a  father  had  thus  agreed  with  his  son 
and  given  him  possession,  and  promised  to  pass  legal  title 
to  him  by  his  last  will,  the  equitable  title  was  held  to  have 
been  passed,  though  the  father  revoked  the  bequest  by  a  codi- 
cil to  his  will.  The  son  had  died,  the  equitable  title  was  judi- 
cially recognized  as  being  in  his  widow  and  children,  notwith- 
standing the  revocation  of  the  devise.^ 

The  sale  of  a  homestead,  by  mortgage  foreclosure  to  which 
the  defendant's  wife  was  not  made  a  party,  was  held  not  to 
pass  title,  even  to  the  half  interest  owned  by  him  at  the  time 
of  the  incumbrance.  The  ruling  was  avowedly  in  deference 
to  a  prior  decision,  "  without  reference  to  our  individual  views 
upon  the  matter,"  the  court  said.'' 

A  conveyance  of  land,  embracing  the  homestead  and  more 
realty,  though  signed  by  the  wife  and  acknowledged  by  her 
in  proper  form,  fails  to  transfer  the  homestead  if  the  convey- 
ance expressly  states  that  she  joined  her  husband  therein 
"  solely  for  the  purpose  of  relinquishing  her  dower  interest  in 
the  land."     Under  the  following  statutory  provision :    "  When 

'  Bolton  V.  Oberne,  79  la.  278,  citing  ^  Winkleman  v.  Winkleman,  79  la. 
the  foregoing  cases  on  the  point  of    319. 

the  wife's  non-joinder ;  and,  on  the        *  Thompson  v.  Jones,  77  Tex.  626, 
last  point,  Lunt  v.  Neely,  67  la.  98.        referring  to  a  case  between  tlie  same 

^  Drake  v.  Painter,  77  la.  731.  parties,  60  Tex.  94 ;  and  citing  Camp- 

bell V.  Elliott,  52  Tex.  151. 


416  RKSTKAINT    OF    ALIENATION. 

the  honiestead,  after  being  reduced  to  the  lowest  practicable 
area,  exceeds  two  thousand  dollars  in  value,  and  the  husband 
has  aliened  the  same  by  deed,  mortgage  or  other  conveyance, 
without  the  voluntary  signature  and  assent  of  the  wife,  shown 
and  acknowledged  as  required  by  law,  the  husband,  or,  if  he 
fails  to  act,  the  wife,  or  if  there  is  no  wife,  or  she  fails  to  act, 
his  minor  children,  may,  by  bill  in  equity,  have  the  land  sold, 
and  the  homestead  interest  separated  from  that  of  the  alienee," 
it  was  held  that  such  conveyance,  by  the  husband  alone,  vested 
in  the  alienee  no  title  of  the  homestead  interest  of  two  thou- 
sand dollars.' 

Before  the  above  provision  was  enacted,  no  means  existed 
for  carving  a  homestead,  or  saving  its  value,  out  of  property 
worth  more  than  the  monetary  limit  yet  indivisible:  so  a 
homestead  thus  circumstanced  was  deemed  bej^ond  the  pale 
of  constitutional  protection,  and  a  married  owner  could  alien 
the  whole  without  his  wife's  joinder.^ 

The  method  prescribed  by  the  section  quoted  is  sale  of  the 
whole  realty  by  order  of  court  to  reserve  from  its  proceeds 
the  sum  protected  as  exempt  in  lieu  of  the  homestead.  The 
purchaser  gets  good  title  to  the  whole,  including  the  home- 
stead, without  the  wife's  signature,  when  the  sale  is  under 
such  order.  The  husband  has  the  primary  right  to  receive 
the  sum  reserved.^ 

A  deed  made  by  the  husband  alone  convej's  any  excess  of 
realty  above  the  homestead  interest.  If  he  file  a  bill  to  en- 
force his  lien  on  the  whole  of  land  which  includes  the  home- 
stead, the  court  acquires  jurisdiction  of  the  subject-matter. 
If  it  also  has  jurisdiction  of  the  parties,  it  may  require  the 
complainant  to  do  equity;  and  so  may  order  a  sale  of  the  land 
and  award  two  thousand  dollars  of  the  proceeds  to  the  hus- 
band as  his  homestead  interest.  The  court  may  do  this  instead 
of  abating  the  purchase-money  by  two  thousand  dollars  and 
decreeing  the  sale  of  the  excess  for  the  payment  of  the  bal- 
ance. The  former  is  deemed  the  better  course  and  the  more 
equitable,  since  it  saves  the  parties  from  the  expense,  delay 

'Thompson  v.  Sheppard,  85  Ala.  Feb.  9,  1877;  Long  v.  Mostyn,  65  Ala. 
611,  617;  Moses  v.  McClain,   83  Ala.     543. 

870 ;  Ala.  Code  (1886),  §  2538 ;  Act  of        ^  Farley  v.  Whitehead,  63  Ala,  295. 

'Thompson  v.  Sheppard,  supra. 


ASSIGNMENT    OF    HOMESTEAD.  417 

and  inconvenience  of  another  bill  for  the  resale  of  the  land  to 
separate  the  homestead  interest  from  that  which  is  not  ex- 
empt.^ 

§  4.  Assignment  of  Homestead. 

The  exemption  right  to  a  certain  sum  from  the  proceeds  of 
a  famil}^  residence  sold  under  execution  for  debt  is  not  an  as- 
signable interest.  The  husband  alone  ma}''  mortgage  or  sell 
the  property  in  which  this  interest  of  the  family  exists,  but 
cannot  extinguish  the  interest  by  such  act  where  the  statute 
authorizes  the  carving  of  a  homestead  of  the  limited  value, 
out  of  the  property  subject  to  that  right  and  interest.  The 
husband  and  wife  together  may  yield  their  right  by  waiver 
but  he  alone  cannot.^ 

When  there  had  been  judgment  rendered  against  a  wife, 
the  owner  of  a  homestead  enjoyed  by  herself  and  her  hus- 
band, she  conveyed  it  by  assigning  her  contract  to  purchase 
it.  He  did  not  join  in  the  assignment,  but  both  joined  in 
abandoning  the  premises  to  the  assignee.  The  judgment  lien 
was  held  valid  against  the  property  —  the  assignment  being 
absolutely  void.' 

The  mortgagor  should  be  made  a  party  defendant,  in  fore- 
closure proceedings,  though  he  has  made  an  assignment  yet 
claimed  his  homestead  on  which  the  mortgage  rests.  The 
assignee  cannot  represent  him,  unless  the  mortgage  was  ac- 
knowledged according  to  the  statute  of  the  state  where  the 
homestead  was  situated.* 

Where  notice  is  required,  creditors  not  notified  or  included 
in  the  list  of  creditors  filed  in  the  probate  court  when  home- 
stead is  assigned  out  of  lands  levied  upon  are  not  afi'ected  by 
the  assignment.  As  to  them,  the  proceedings  setting  the 
homestead  apart  are  void.'  The  court  remarked  in  a  case  in- 
volving this  requirement:  "  It  was  said  in  the  argument  that 
the  wife  of  a  debtor  is  not  supposed  to  know  all  his  creditors. 

1  lb.  *  Dendel  \.  Sutton,  20  Fed.  787  (Ct. 

2  Bennett  v.  Cutler,  44  N.  H.  69 ;  Ct,  S.  Dist  Illinois) ;  Swenson  v.  Hal- 
Atkinson  V.  Atkinson,  37  N.  H.  434 ;     berg,  1  Fed.  444. 

Gunnison  v.  Twitchell,  38  N.  H.  73.  -^  Wheeler  v.   Christopher,   68  Ga. 

*  Belden  v.   Younger,  76  la.   567.    635 ;  Boroughs  v.  White,  69  Ga.  842. 
See  Morehead  Banking  Co.  v,  Whit- 
aker  (N.  C),  14  S.  E.  934 


418  KESTKAINT    OF    ALIENATION. 

But  she  must  know  them  if  she  wishes  to  bind  them.  In 
taking  homestead,  she  represents  her  husband.  She  has  only 
his  right,  and  must  comply  with  the  law  just  as  he  w;ould 
have  to  comply  with  it  did  he  make  the  ap])lication  in  person." ' 

Exempt  property  may  be  excepted  by  the  debtor  from  a 
general  assignment.-  It  has  been  held  that  it  may  be  thus 
excepted  and  claimed  by  the  assignor,  though  he  may  have 
waived  his  right  in  favor  of  a  preferred  creditor.' 

If  his  homestead  is  under  mortgage,  the  claim  of  exemption 
cannot  be  made  by  the  mortgagee,  but  it  may  be  made  by  the 
mortgagor  who  makes  the  general  assignment.*  His  home- 
stead right  is  subject  to  the  mortgage,  and  that  right  may  be 
assigned. 

An  assignment  to  creditors,  from  which  a  homestead  with 
more  than  the  limit  is  excepted,  does  not  convey  the  excess 
to  the  assignee.*  This  is  simply  because  the  excess  was  not 
assigned.  It  will  be  observed  that  the  word  homestead  as 
used  above  is  employed  in  the  ordinary  ■ —  not  the  technical 
sense.  The  assignee  did  not  merely  reserve  his  legally  re- 
stricted and  exempt  family  residence,  but  his  family  residence 
unrestricted.  Had  he  exempted  his  homestead,  in  the  sense 
in  which  the  word  is  usually  understood  as  a  legal  term,  the 
assignment  would  have  conveyed  the  excess. 

An  insolvent's  homestead,  so  far  as  it  is  liable  for  debts 
contracted  before  it  was  dedicated,  passes  to  the  assignee, 
who  may  validly  convey  it.  Should  the  conveyance  be  sub- 
ject to  the  homestead  right,  that  qualification  will  be  under- 
stood as  meaning  any  right  against  the  order  of  assignment.® 

An  insolvent's  assignment,  with  his  homestead  right  re- 
served, creates  no  lien  on  a  homestead  set  out  for  him  before 
judgment,  though  the  legal  title  of  that  has  passed  to  the  as- 
signee with  title  to  the  rest  of  the  propert}^  assigned.  The 
debtor,  however,  can  convey  to  a  purchaser  only  his  equitable 
interest  after  the  settlement  of  the  assignee's  trust.'' 

Homestead  exemption,  considered  as  a  personal  privilege, 

1  Stewart  v.  Stisher,  83  Ga.  297-9.  sWilhoit  v.  Bryant,  78  Cal.  263. 

•'iHartzler  v.  Tootle,  85  Mo.  23,  dis-  eTilden  v,  Crimrains,  60  Vt.  546; 

tinguishing  Billingsley  v.  Spencer,  64  Collender  Co.  v.  Marsliall,  57  Vt.  232 ; 

Mo.  355 :  McCord  v.  Moore,  5  Heisk.  734.  Vt  R.  L.,  t^g  1901.  1920. 

3  i2e  Poleraan,  5  Biss.  526.  ^Schuler  v.    Miller,  45  O.  St.  325. 

*  EdmondsoD  v.  Hyde,  2  Saw.  218.  See  Halsey  v.  Whitney,  4  Mason,  206. 


CX)NVEYANOE    STEIOTLY   CJ0N8TEUED.  4  H) 

is  not  an  assignable  estate  and  does  not  run  with  the  land.    It 
is  a  possessory  right  which  may  be  waived  or  abandoned.' 

I>efore  accepting  any  benefit  of  an  assignment  by  tlie  debtor 
in  which  he  has  reserved  his  right  of  homestead,  a  creditor 
may  contest  that  right.^  It  is  otherwise,  if  the  creditor  has 
accepted  without  objection  to  the  reservation. 

§  5.  Conveyance  Strictly  Constrned. 

The  homestead  can  be  conveyed,  and  the  exemption  right 
barred,  only  upon  strict  compliance  with  the  terms  of  the 
law.-'  AV'hile  an  absolute  sale  in  good  faith  by  husband  and 
wife  may  be  valid  under  the  constitution  and  laws  of  a  state, 
executory  agreements  to  sell,  and  sales  containing  conditions 
of  defeasance,  have  been  treated  as  nullities.'* 

When  the  constitution  of  a  state  prohibits  the  forced  sale 
of  a  homestead,  one  holding  a  mortgage  on  such  property 
cannot  go  into  a  federal  court  and,  by  action  of  ejectment, 
'*  get  around  the  state  constitution  by  the  form  of  his  proceed- 
ing." ^ 

The  mortgage,  if  valid,  cannot  be  rendered  nugatory  with- 
out affecting  the  vested  rights  of  the  mortgagee.  No  doubt, 
by  constitution  or  statute,  the  mortgaging  of  a  homestead 
may  be  inhibited.  Then  the  forced  sale  under  mortgage  ma}^ 
be  forbidden  ^ — the  morto^age  itself  beino:  void.  But  if  the 
mortgage,  or  any  other  lien,  rested  on  the  land  before  the 
homestead  character  attached  to  it,  why  may  it  not  be  en- 
forced anywhere? 

1  Schuler  v.  Miller,  45  O.   St  380 ;  Tenn.  Ch.  606 ;  Connor  v,  McMurray, 

McComb  V.  Thompson,  43  O.  St.  139 ;  2   Allen,  208 ;    Fisher  v.  Meister,  24 

Roig  V.  Schultz,  42  O.  St.  165 :  Car-  Mich.  447. 

penter  v.  Warner,  38  O.  St.  416 ;  Chil-  *An  executory  agreement  to  sell 
cote  V.  Conley,  36  O.  St.  547;  Butt  v.  the  homestead  at  tt  future  time  is 
Green,  29  O.  St.  667 ;  Conley  v.  Chil-  void  in  Texas.  Jones  -.  GofiF,  63  Tex. 
cote,  25  O.  St.  324.  248 ;  Hardie  v.  Clampbell,  63  Tex.  292. 
2Creager  v.  Creager,  87  Ky.  449.  But  by  the  latter  decision  an  abso- 
3  Dickinson  v.  McLane,  57  N.  H.  31 ;  lute  sale  by  the  husband  and  wife  is 
Barnett  v.  Mendenhall,  42  la.  296;  valid — not  coming  under  the  con- 
Black  V.  Lusk,  69  111.  70;  Vanzant  v.  stitutional  inhibition  of  "pieteuded 
Vanzant,  23  111.  485;  Ives  v.  Mills,  37  sales  "  involving  a  "condition  of  de- 
111.  73 ;  Moore  v.  Titman,  33  111.  360 ;  feasance."  And  see  Astuguevilie  v. 
Connor  v.  Nichols,  31  III.  148;  Cross  Loustaunau,  61  Tex.  233. 
V.  Evarts,  28  Tex.  532;  Moore  v.  Dun-  SLanahan  v.  Sears,  102  U.  S.  b\t. 
ning,  29  111.  130 ;  Hoge  v.  Hollister,  2 


4iJ()  BESTEAINT   OF    ALIENATION. 

When  a  homestead  is  illegally  mortgaged,  the  invalidity  is 
not  cured  by  the  subsequent  abandonment  of  the  homestead 
by  both  the  marital  parties.  Removal  of  both  from  the  prem- 
ises will  not  render  the  conveyance  valid  which  was  void 
when  executed  for  want  of  the  wife's  joining  in  the  deed.^ 
As  such  conveyance  is  a  nullity,  it  will  be  no  bar  or  estoppel 
to  the  action  of  husband  and  wife  in  subsequently  executing  a 
valid  deecU  The  radical  defect  in  the  husband's  sole  deed 
would  not  be  healed  by  his  wife's  subsequent  death.^ 

It  has  been  questioned  whether  the  wife's  desertion  of  her 
husband  relieves  from  the  requirement  of  a  constitution  that 
the  mortgage  of  the  homestead  of  a  husband  and  wife  must 
be  signed  by  her  to  give  it  validity.*  The  question  depends 
upon  a  prior  one:  Is  she  still  his  wife,  and  constructively  a 
member  of  his  family  and  a  beneficiary  of  the  homestead  pro- 
vision? If  she  never  lived  with  him,  it  is  held  that  he  alone 
may  sell.* 

Both  a  mortgage  and  a  sale,  by  the  husband  alone,  may  be 
good  in  part  and  bad  in  part.  His  sole  disposition  of  the 
homestead,  in  either  way,  would  be  wholly  bad ;  but  there 
might  be  other  land  sold  or  mortgaged  with  it  that  would  be 
validly  conveyed  by  him.  The  nullity,  as  to  the  homestead, 
does  not  extend  to  the  conveyance  of  other  lands  in  the  same 
instrument,  not  requiring  the  wife's  signature  in  their  aliena- 
tion.^ 

Though  the  wife  may  claim  to  have  signed  a  mortgage  of 
the  homestead  in  ignorance  of  the  fact  that  the  description  of 
land,  in  the  instrument,  included  it,  she  will  be  held  to  her 
act,  in  the  absence  of  fraud  or  of  anything  said  or  done  by 
the  mortgagee  to  mislead  her.'' 

Whether  a  sale  under  a  mortgage  is  a  "forced  sale"  has 
been  thought  to  depend  upon  the  question  whether  it  is  ju- 
dicially done  or  otherwise.     When  a  mortgage  was  foreclosed 

1  Phillips  V.  Stauch,  20  Mich.  369;  704;  Stanton  v.  Hitchcock,  64  Mich. 
Eiuner  v.  Bateman,  66  la,  488 ;  Lunt    316. 

V,  Neeley,  67  la,  97.  6  Hanchett  v.  McQueen,  32  Mich. 

2  Dye  V.  Mann,  10  Mich.  291 ;  22 ;  Smith  v.  Rumsey,  33  Mich.  183 ; 
Artiphlett  V.  Hibbard,  29  Mich.  298.     Griffin  v.  Johnson,  37  Mich.  92 ;  Ste- 

' Shoemaker   v.   Collins,   49  Mich,  venson   v.   Jackson,   40    Mich.    702; 

597 ;  Larson  v.  Reynolds,  13  la.  579.  Dye  v.  Mann,  10  Mich.  291 ;  Wallace 

*  Martin  v.  Piatt,  64  Mich.  629.  v.  Harris,  32  Mich.  380. 
»  Black  V.  Singley  (Mich.),  51  N.  W.        ^Peake  v.  Thomas,  39  Mich.  585. 


CONVEY ANOB    STKIOTLY    CONSTRUED.  421 

by  order  of  court,  the  sale  was  deemed  ;•  forced  one;  when 
the  sale  was  by  the  mortgagee,  pursuant  to  authorization  in 
the  instrument,  it  was  held  not  to  be  a  "forced  sale,"  such  a^s 
had  been  inhil)ited  by  the  constitution  and  statute  of  the  state 
where  the  distinction  was  made  at  the  time  the  decisions 
making  it  were  rendered.' 

The  distinction  is  thus  drawn  and  illustrated:  Forced  sale 
is  alienation  against  the  presumed  will  of  the  debtor;  so  w 
mortgage,  containing  the  mortgagor's  assent  to  alienation, 
may  be  foreclosed  without  violating  any  inhibition  of  the 
forced  sale  of  the  property  hypothecated,  though  it  be  a 
homestead.^ 

The  mortgage  of  a  homestead  made  by  both  husband  and 
wife,  regular  in  all  respects  except  a  defect  in  the  description 
of  the  property  conveyed,  is  susceptible  of  subsequent  correc- 
tion. It  is  not  to  be  treated  as  void  b}^  creditors  or  any  per- 
sons antagonistic  to  the  conveyance.  It  precludes  the  attach- 
ment or  execution  of  the  property  in  disregard  of  it  as  a  valid 
transaction.  The  defect  may  be  corrected  just  as  a  convey- 
ance from  a  person  not  married  may  be  under  like  circum- 
stances.^ 

An  equity  court  will  correct  evident  errors  of  description, 
admitted  to  be  such  by  both  parties  when  the  conveyance  is 
by  husband  and  wife,  of  property  including  their  homestead.* 
An  absolute  deed  cannot  be  reformed  into  a  mortgage  to  pro- 
tect a  wife's  homestead,  though  alleged  to  have  been  intended 
and  understood  to  be  one  by  both  husband  and  wife  when  con- 
ve3nng.^ 

If  the  property  sold  by  husband  and  wife  includes  their 
homestead,  it  has  been  held  that  their  right  to  enjoy  the  priv- 

'  Jordan    v.   Peak,    38    Tex.    439 ;  3  Beyschlag  v.  Vau  Wagoner,  46 

Stewart  v.  Mackey,  16  Tex.  58 ;  Samp-  Mich.  91. 

son  V.  Williamson,  6  Tex.  102.     Sim-  ■»  Gardner  v.  Moore,   75    Ala.  894. 

liar  distinction  was  made  in  Illinois.  And  generally,  as  to  error  of  descrip- 

Wing  V.  Cropper.  35  111.  264 ;  Smith  tion  :  Carper  v.  Munger,  62  Ind.  481 ; 

V.   Marc,   26   111.    155;    Ely  v.  East-  Houx  v.  County  of  Bates.  61  Mo.  391. 

wood,  26  111.  108.  Contra:   Leonis   v.    Lazzarovich,   55 

^  Hart  V.   Sanderson's    Adm'r,   18  Cal.  52 ;  Martin  v.  Hargadine,  46  HL 

Fla  103,  115;  Patterson  v.  Taylor,  15  322. 

Fla,   337.     Mortgage   of   the    home-  5  Barnett  v.  People's  Bank,  65  Ga. 
stead  by   husband    and  wife  is  al-  51 ;  Act  (Ga.)  Dec.  12, 1871  :  "  To  pro- 
lowed  in  Florida.     First  N.  Bank  v.  vide  for  sales,  etc" 
Ashmead.  23  Fla.  379. 


432  RKSTWAINT    OF    ALIENATIOX. 

ileges  secured  to  them  by  law  must  be  expressly  conveyed  by 
apt  words  or  it  will  be  presumed  to  have  been  reserved.* 

There  is  no  universally  established  rule  that  without  ex- 
press mention  and  waiver  of  the  homestead  right  it  will  be 
deemed  reserved.  A  warranty  deed  made  by  the  husband 
and  wife,  and  duly  executed  in  all  respects,  is  not  everywhere 
deemed  insufficient  to  release  an  unmentioned  homestead 
right.  The  doctrine  ought  to  be  entertained  and  acted  upon 
with  caution,  by  the  profession,  even  where  the  courts  have 
avowed  it.     The  doctrine  has  been  denied.^ 

"  The  power  of  alienation  is  not  derived  from  the  statute 
relatino-  to  alienation  of  the  homestead.  It  is  an  incident  of 
the  ownership  of  the  property,  independent  of  the  homestead 
law;  and  the  directions  and  prohibitions  of  the  statute  as  to 
the  alienation  are  mere  restrictions  upon  this  antecedent 
power.  Without  any  such  restrictions,  the  property  passes 
by  a  conveyance,  as  if  there  were  no  homestead.  No  express 
waiver  of  the  homestead  is  essential,  unless  the  statute  re- 
quires it,  because,  the  property  having  passed  by  the  convey- 
ance, the  homestead  necessarily  ceases." ' 

An  instrument,  signed  by  both  spouses,  need  not  state  that 
the  property  conveyed  is  the  homestead,  since  such  averment 
is  not  necessary  to  the  validity  of  the  conveyance.* 

The  necessity  of  the  joinder  of  both  is  not  obviated  by  the 
husband's  conveyance  to  the  wife,  and  hers  subsequently  to  a 
third  person,^  though  his  to  her  would  be  good  as  to  title.^ 

The  wife's  sole  signature  to  the  transfer  of  the  homestead 
right  is  very  different  from  such  individual  action  to  relin- 
quish dower.'' 

1  Connor  v.  McMurray.  2  Allen,  202.  3  Note  by  Mr.  Freeman  to  Pool  v. 
See  Greenough  v.  Turner,   11   Gray.     Gerrard,  65  Am.  Dec.  482. 

332 ;  Retlforn  V.  Redfern,  38  111.  509 ;  ^Babcock    v.   Hoey,    11    la.    375; 

Boyd    V.    Cudderback,    31   111.    113 ;  O'Brien  v.  Young,  15  la.  5 ;  Reynolds 

Thornton    v.    Boyden.    31    111.   200 ;  v.  Morse,  52  la.  155 ;  Van  Sickles  v. 

Smith  V.  Miller,  31  111.  157 ;  Patterson  Town,  53  la.  259 ;  Waterman  v.  Bald- 

\.  Kreig,  29  111.  514 ;  Miller  v.  Marckle,  win.  68  la.  355. 

27  111.  405 ;  Hodge  v.  Hollister,  2  Tenn.  &  Spoon  v.  Van  Fossen,  53  la.  494. 

Ch.  606.  G  Harsh  v.  Giffin,  72  la.  608.     See 

2  Waterman  v.  Baldwin,  68  la.  255 ;  Luther  v.  Diake,  21  la.  92,  rendered 
O'Brien  v.  Young,  15  la.  5 ;  Babcock  under  another  statute. 

V.  Hoey,  11  Ta.  375 ;  Rubbins  v.  Cook-  7  sharp  v.  Bailey,  14  la.  387 ;  Fuller 
endorfer,  10  Bush,  629 ;  Wing  v.  Hay-  v.  Hunt.  48  la.  163 :  Wilson  v.  Cliris- 
den.  10  Bush,  280.  tophen,  53  la.  481 ;  Eisenstadt  v.  Cra- 


VVIFK's    ACK.VoVVLKIKJMKNT — HOW    CONSTRUED.  42:> 

§  6.  Wife's  Acknowledgment  —  How  Constrned. 

Courts  strictly  require  the  observance  of  the  law  respecting' 
the  wife's  examination  and  acknowledgment  apart  from  her 
husband,  while  they  readily  lend  the  ear  to  her  subsequent 
complaints  of  duress,  fraud  and  undue  influence.'  But  the 
rule  is  not  to  be  pressed  to  the  point  of  injustice.-  The  wife's 
signature  to  a  sale  or  mortfiafje  must  be  her  free  act.  Pro- 
cured  by  duress,  it  is  of  no  validity.'  The  effect  is  the  same 
if  she  sign  when  insane,  or  wanting  in  mental  capacity  so 
as  to  prevent  her  from  acting  with  free  and  intelligent  voli- 
tion,^ though  there  may  be  circumstances  under  which  tlio 
rights  of  an  innocent  mortgagee  will  be  maintained.^ 

The  wife's  signature  is  not  essential  to  an  agreement  to  coji- 
vey  property  fraudulently  acquired  as  a  homestead,^  If  not 
validly  acquired,  and  not  a  homestead,  the  exemption  provis- 
ions do  not  apply :  so,  if  the  property  fraudulently  acquired 
is  susceptible  of  sale,  the  husband  alone  may  sell.  And  if  the 
property  was  lawfully  acquired,  yet  the  homestead  character 
fraudulently  created,  he  alone  may  sell. 

When  her  signature  has  been  obtained  by  fraud  practiced 
upon  her  b}'^  her  husband,  she  may  repudiate  the  act  provided 
the  rights  of  the  other  contracting  party  are  not  infringed. 
But  it  has  been  held  that  the  fraudulent  inducement  and  de- 
ceptive statements  of  the  husband  to  the  wife  will  not  militate 
against  the  rights  of  an  innocent  grantee  or  mortgagee  when 
the  wife  has  actuall}^  signed  the  instrument.^  On  such  points 
as  this,  the  practitioner  must  look  to  the  statutes  and  judicial 
rulings  of  his  own  state,  since  no  general  rule  can  be  stated. 
There  can  be  no  doubt,  how^ever,  that  if  the  other  contracting 
party  is  privy  to  the  fra.ud  practiced  by  the  husband  upon  the 
wife,  she  may  have  the  deed  set  aside. 

mer,  55  la.  753.     Compare  Reynolds  stienne    v.   Sclinoor,   33  Mich.   274 ; 

V.  Morse,  52  la.  155.  Lawyer  v.  Slingerland,  11  Minn.  447. 

1  First  N.  Bank  v.  Bryan,  62  la.  42 ;  3  Yivst  Nat.  Bank  v.  Bryan,  63  la. 
Westbrook    v.   JetTers,   33  Tex.   86;  43. 

Cross  V.  Everts.  28  Tex.  532;  Nichols  ■•Alexander  v.  Vennum,  61  la.  160. 

V.  Nichols,  61  Vt.  426 ;  Helm  v.  Helm,  &  Abbott  v.  Creal.  56  la.  175. 

11  Kas.  19.  6Muir  v.  Bozarth,  44  la.  499. 

2  Morris  v.  Sargent,  18  la,  90 ;  Nor-  "  Edgell  v.  Hagens,  53  la.  223 ;  Van 
ton   V.  Nichols,  35   Mich.  150;  How-  Sickles   v.   Town,   53   la.  259;  Etna 


424  RESTRAINT    OF    ALIENATION. 

A  conveyance,  in  which  the  grantor  and  grantee  design  to 
defeat  the  interest  of  the  wife  in  the  estate  of  her  husband,  is 
void  as  to  her  interest.  Such  design  is  presumed  when  the 
contracting  parties  know  that  the  effect  of  the  conveyance 
would  be  to  deprive  her  of  her  riglit,  were  it  valid.  The  in- 
validity is  not  avoided  by  the  fact  that  there  was  a  valid  con- 
sideration.' 

Under  the  inhibition  of  the  "  mortgage  or  the  alienation  of 
the  homestead  .  .  .  without  the  voluntary  signature  and 
assent  of  the  wife,"  ^  it  is  held  that  an  instrument  of  convey- 
ance, duly  signed,  sealed  and  acknowledged,  but  inoperative 
for  non-delivery,  cannot  be  enforced  as  to  the  homestead,  but 
may  be,  as  to  the  husband,  in  equity  proceeding,  treating  the 
instrument  as  a  contract  to  convey.* 

If  the  wife's  signature  to  a  deed  by  her  husband,  for  the 
relinquishment  of  her  dower,  be  attested  by  two  witnesses, 
though  it  be  not  separately  acknowledged  where  the  statute 
requires  separate  acknowledgment  by  her  in  assenting  to  the 
conveyance  of  the  homestead,  it  will  prove  effectual  to  val- 
idate the  conveyance  upon  the  abandonment  of  the  homestead 
and  the  acquisition  of  another  one  before  the  delivery  of  the 
deed  to  the  grantee.* 

Life  Ins.  Co.  v.  Franks,  53  la.  618;  wise,  4  Johns.  536;  Holland  v.  Cruft, 

Sawyer  v.  Perry,  62   la.  238 ;  Miller  20  Pick.  321. 

V.  Wolbert,  71  la.  539;  Rubelraan  v.  2So  in  Const,  of  Ala.,  art.  X,  §  2. 

Rummel,  72  la.  40.  3  Jenkins  v.  Harrison,  66  Ala.  345, 

1  Nichols  V.  Nichols,   61   Vt   426 ;  and  cases  cited. 

Ladd  V.  Ladd.  14  Vt.  194 ;  Thayer  v.  *  This  under  Alabama  Code,  §§  1894, 

Thayer,  14  Vt   118;  Jenny  v.  Jenny,  2508,   as  coastrued    in    the  case  of 

24  Vt.  324 ;  Jones  v.  Spear,  21  Vt.  426 ;  Woodstock  Iron  Co.    v.  Eichardson 

Proutv.  Vaughn,  52  Vt.  451;  McLane  (Ala.),  10    So.     144       Coleman,    J.: 

V.  Johnson,  43  Vt.  49 ;  Edgell  v.  Low-  "  When   this    case    was    before    the 

ell,  4  Vt.  405 ;  Van  Wick  v.  Seward,  court  at  a  former  term,  it  was  held 

18  Wend.   385-7 ;     Cunningham    v.  that  a  conveyance  of  the  homestead, 

Freeborn,  3  Paige,  557 ;  Habergham  in  all  respects  effectual  for  that  pur- 

V.  Vincent,  2  Vesey,  Jr.  204 ;  Read  pose,  except  that  it  was  not  acknowl- 

V.  Livingston,  3  Johns.  500 ;  Hyslop  edged   by  the  wife  as  required   by 

V.  Clarke,  14  Johns.  458,  465 ;  1  Story,  law,  was  a  nullity ;  and  that  a  proper 

Eq.,  §  629;  Bump's  Fr.  Cov.  282-3;  acknowledgment  made  by  the  wife 

Schouler,  Ex.  &  Adm'rs,  §  220 ;  Nich-  after  the  death  of  the  husband  did 

ols    V.    Nichols,    supra;    Bassett    v.  not  defeat  or  affect  the  title  of  the 

McKenna,  52  Vt.  438;    Robinson  v.  heirs.       This  conclusion  necessarily 

Stewart,  10  N.  Y.  189 ;  Sands  v.  Cod-  resulted  from  well-settled  princi])le8 


WIFE  S    ACKNOWLEDGMENT 


HOW    CONSTRUED. 


425 


The  signature  of  the  wife  to  a  mortgage,  or  iiny  species  of 
alienation,  is  inoperative  to  divest  her  of  her  home  protection, 
when  obtained  by  fraudulent  misrepresentations  by  which  she 
was  induced  to  sio:n  the  instrument.     Even  thouirh  she  is  in 


of  law,  as  declared  by  repeated  de- 
cisions of  this  court,  and  many  of 
them  being  referred  to  in  the  opinion. 
Richardson  v.  Iron  Co.,  90  Ala.  268 ; 
8  South.  Rep.  7.  The  question  pre- 
sented on  this  appeal  was  not  con- 
sidered in  that  opinion,  and  could 
not  have  arisen  from  the  evidence  as 
then  stated  in  the  record.  The  un- 
disputed facts,  as  they  appear  in  the 
present  record,  show  that  the  instru- 
ment was  signed  and  dated  and 
properly  attested  by  two  witnesses, 
but  not  acknowledged  by  the  wife  in 
the  manner  required  by  law  for  the 
conveyance  of  a  homestead,  and  a 
fevv  days  prior  to  its  delivery  to  the 
grantee.  That,  at  the  time  it  was 
signed,  dated  and  attested,  the 
grantor  and  his  wife  occupied  as  a 
homestead  the  land  described  in  the 
instrument.  The  testimony  further 
shows  that  at  that  time  the  husband 
and  owner  of  the  land  contemplated 
and  was  preparing  to  change  his 
homestead,  and  a  few  days  there- 
after actually  removed  to  and  occu- 
pied another  and  different  place  as 
his  homestead.  The  evidence  further 
shows  that,  prior  to  his  removal,  the 
grantor  and  grantee  were  negotiat- 
ing for  the  sale  and  purchase  of  the 
land  then  occupied  as  a  homestead, 
and,  in  pursuance  of  the  understand- 
ing between  them,  the  instrument 
was  prepared,  signed,  dated  and  duly 
attested,  as  above  stated.  The  evi- 
dence further  shows  that  the  grantor 
retained  the  instrument  in  his  own 
possession  and  under  his  control 
until  he  had  acquired  a  new  home- 
stead. That  subsequent  to  his  re- 
moval to  the  newly-acquired  home- 
stead the  purchase-money  was  paid 


for  the  premises  conveyed,  and  the 
deed,  without  the  acknowledgment 
by  the  wife,  delivered  to  the  grantee. 
These  facts  are  not  controverted. 
'  Delivery  is  essential  to  give  effect  to 
a  deed ;  .  .  .  that,  though  signed, 
attested  or  acknowledged,  so  long  as 
the  grantor  retains  control  over  it, — 
so  long  as  he  does  not  part  with  it, — 
with  the  purpose  that  it  shall  inure 
to  the  grantee,  title  will  not  pass 
from  him.'  Jenkins  v.  Harrison,  6G 
Ala.  356  ;  Elsberry  v.  Boykin.  65  Ala. 
340.  A  deed  or  other  writing  only 
takes  effect  from  its  delivery.  Stiles 
V.  Brown,  16  Vt.  565.  A  deed  duly 
signed  and  dated,  but  delivered  at  a 
subsequent  date,  takes  effect  only 
from  the  date  of  delivery  and  the 
delivery  cannot  relate  back,  so  as  to 
vest  title  from  the  date  of  the  deed. 
Mitchell  v.  Bartlett,  51  N.  Y.  453. 
Notwithstanding  there  is  a  written 
date,  the  true  date  may  be  shown  by 
extraneous  evidence,  even  in  the 
most  solemn  instruments,  as  deeds 
under  seal.  Lee  v.  Insurance  Co.,  6 
Mass.  219.  The  deed  only  takes  effect 
from  the  actual  time  of  its  delivery, 
and  the  actual  date  of  delivery  will 
always  control  the  date  mentioned  in 
the  deed.  Tied.  Real  Prop.,  §  812; 
Smith  V.  Porter,  10  Gray,  66 ;  Newlin 
V.  Osborne,  67  Amer.  Dec.  268.  Ac- 
ceptance by  the  grantee  is  essential 
to  pass  title  from  the  grantor  and  to 
the  validity  of  the  deed.  Tied.  Real 
Prop.,  §  814  ;  66  Ala.  356,  siqjra.  The 
writing  and  signing  a  note  on  Sun- 
day is  not  the  execution  of  it  on  that 
day,  unless  it  be  delivered  on  that 
day  to  the  payee ;  delivery  being  es- 
sential to  make  it  operative  as  a  con- 
tract.    If  delivered  on  a  subsequent 


42(1  RESTRAINT    OF    ALIENATION. 

fault  for  not  reading  before  signing,  there  may  be  circum- 
stances under  which  slie  should  not  be  held  to  an  agreement 
thus  evidenced :  as  when  the  notary  before  whom  the  act  was 
acknowledged  was  himself  the  inducer,  for  his  own  benefit.* 

"  A  mortgage  of  the  homestead,  to  be  of  any  validity,  re- 
quires that  the  'joint  consent'  of  both  the  husband  and  wife 
should  be  given  thereto ;  and  this  consent  must  not  be  brought 
about  by  any  fraud,  deception,  or  misstatement  of  any  mate- 
rial facts  by  the  other  party  to  the  alienation,  but  must  be  the 
voluntary  and  intelligent  consent  of  both  the  husband  and 
wife."^  And  her  consent  must  be  in  writing:.'  And  if  she 
has  failed  to  assent,  and  the  mortgage  was  fraudulently  given 
by  the  husband,  she  cannot  make  it  valid  by  a  subsequent  act, 
since  proceedings  that  are  criminal  cannot  be  ratified.* 

A  wife  cannot  be  bound  by  any  mortgage,  assignment  or 
contract  of  any  sort  which  deprives  her  of  that  home  protec- 
tion which  the  law  vouchsafes  to  her  in  providing  that  her 
residence  (within  restrictions  as  to  quantity  or  value,  or  both) 
shall  be  exempt  from  forced  sale  for  debt.  'No  lien  can  be 
created  or  enforced  against  such  home,  against  her  will,  though 
she  may  have  no  legal  title  in  or  to  the  property.  Her  hus- 
band cannot  change  the  character  of  any  validly  existing  lien, 
or  the  rank  of  a  mortgage,  by  his  contract,  nor  re-create  a  lost 
lien,  unless  he  do  so  jointly  with  her,  or  with  her  consent.' 

One  buying  a  homestead  of  a  husband  and  wife  gets  good 

day,  not  Sunday,  it  takes  effect  as  a  a  good  title.  Reversed  and  re- 
valid  instrument  from  the  day  of  de-  manded." 

livery.     Flanagan  v,  Meyer,  41  Ala.  i  Warden  v.  Eeser,  38  Kas.  86,  in 

135.     It  is  legally  impossible  to  have  vi^hich  the  following  cases  are  distin- 

two  homesteads  at  the  same  time.  guisJied:  Eoach  v.  Karr,  18  Kas.  584 ; 

Boyle  V.  Shulman,  59  Ala.  569.     If  Ort  v.  Fowler,  31  Kas.  478.   Nor  when 

tlie  wife  had  died  after  the  husband  induced  by  violence.    Helm  v.  Helm, 

acquired  a  new  homestead,  and  be-  11  Kas.  19. 

fore  the  delivery  of  the  deed,  accord-  2  Bird  v.  Logan,  35  Kas.  228. 

ing  to  all  the  principles  of  law  cited  3  Jenkins  v.  Simmons,  37  Kas.  496. 

in  the  foregoing  authorities,  the  deed  *  Howell  v.  McCrie,  36  Kas.  636. 

took  effect  from   the  day  of  its  de-  5  Jenkins  v.  Simmons,  37  Kas.  496; 

livery.    The  principle  involved  in  the  Spencer  v.  Fredendall,  15  Wis.  666; 

present    appeal    is^  vitally   different  Campbell   v.  Babcock,  27  Wis.  512; 

from  that  adjudicated  on  the  former  Barber  v.  Babel,  36  Cal.  11;  Snell  v. 

appeal.      Under  the  facts  stated  we  Palmer,  12   Bradw.  337;  Tolman  v. 

do  not  doubt  the  purchaser  received  Leathers,  1  McCrary,  329 ;  Anderson 

V.  Culbert,  55  la.  233. 


WIPES    ACKNOWLEDGMENT  -      now    CONS  lliUED. 


4:^7 


title  though  apprised  of  the  fact  that  the  husband  ahjue  has 
previously  sold  it.'  But  under  such  circumstances,  as  under 
any  other,  the  wife  must  sign  the  deed,  since  her  verbal  as- 
sent to  the  sale  or  incumbrance  of  the  common  homestead  is 
never  of  any  force  or  cffect.- 

A  chancery  court  will  not  specifically  enforce,  as  an  exec- 
utory agreement  to  convey,  a  conveyance  by  husband  and 
wife  of  their  homestead,  when  the  certificate  of  acknowledg- 
ment is  substantially  defective,  on  the  averment  that  the  ex- ; 
amination  and  acknowledgment  w^ere  rightly  made  but  not  so 
certified  by  the  officer.  Nor  will  such  court  reform  a  certifi- 
cate on  such  showing.  The  wife's  interest  is  not  conveyed.' 
But  a  mistake  may  be  reformed  by  such  court,  when  the  exe- 
cution of  the  mortgage  is  regular,  yet  there  is  an  error  of 
boundary  description  didy  proven.* 

A  substantial  compliance  with  the  requirement  that  the 
wife  be  examined  apart  from  her  husband,  shown  by  the  cer- 
tificate, will  suffice.  If  it  is  certified  that  she  signed  volun- 
tarily without  conslsraint  or  threat  on  the  part  of  her  husband, 
the  certificate  may  be  received  as  sufficiently  formal.^ 


1  Garlock  v.  Baker,  46  la.  334. 

2Donner  v.  Redenbaugh,  61  la. 
269;  Stinson  v.  Richardson,  44  la. 
873 ;  Clay  v.  Richardson.  59  la.  483 ; 
Anderson  v.  Culvert,  55  la.  233; 
Clark  V.  Evarts,  46  la.  248.  But  it 
was  held  that  ratification,  where 
there  are  defects  of  form,  may  be 
either  express  or  presumed  from  acts. 
Spafiford  v.  Warren,  47  la.  47. 

8  Cox  V.  Holcomb,  87  Ala.  589 ;  Ala. 
Code  (1886),  g  2508 ;  Balkum  v.  Wood, 
58  Ala.  642 ;  Jenkins  v.  Harrison,  66 
Ala.  345 ;  Blythe  v.  Dargin,  68  Ala. 
370;  Scott  V.  Simons,  70  Ala.  354; 
Gardner  v.  Moore,  75  Ala.  394  (see 
McBryde  v.  AVilkinson,  29  Ala.  662) ; 
Stovall  V.  Fowler,  72  Ala.  77 ;  Allen 
V.  Kellam,  69  Ala.  442;  Watson  v. 
Mancill.  86  Ala.  600 ;  Russell  v.  Rum- 
sey,  35  111.  362  ;  Johnson  v.  Taylor,  40 
Tex.  360;  Hutcliinson  v.  Ainsworth, 
63  Cal.   286;    Kottenbroeck   v.  Cra- 


craft,  36  O.  St.  584  {see  Warrall  v. 
Kem,  51  Mo.  150) ;  Gibb  v.  Rose,  40 
Md.  387.  Code  of  Alabama,  section 
1894,  provides  that,  when  a  wife  re- 
linquishes her  dower,  "  her  signature 
must  be  attested  by  two  witnesses, 
or  acknowledged  by  her," 
etc.  Section  2508  provides  that  an 
alienation  of  a  homestead  by  a  mar- 
ried man  shall  not  be  valid  "  without 
the  voluntary  signature  and  assent 
of  the  wife,  which  must  be  shown  by 
her  examination,  separate  and  apart 
from  him,  and  prescribes  the  form  of 
the  certificate  of  her  acknowledg- 
ment. 

■*  Witherington  v.  Mason,  86  Ala. 
345.  See  Daniels  v.  Lowry,  96  Ala. 
519;  Code,  §2508. 

5  Homer  v.  Sconfield,  84  Ala.  313 ; 
Alalama  Code  (1886),  g  2508.  Liberal 
construction  as  to  grantee.  Gates  v. 
Hester,  81  Ala.  357 ;  Sharpe  v.  Orm, 


428  RESTRAINT    OF    ALIENATION. 

Omission  of  saying  she  signed  without  threat  was  held  fatal 
to  the  certificate.' 

If  there  be  no  requirement  of  law  that  the  wife  shall  be  ex- 
amined separate  from  her  husband  upon  signing  a  mortgage 
or  other  conveyance,  courts  cannot  hold  her  act  inoperative 
when  she  signs  with  her  husband  and  the  certificate  shows 
that  fact,  but  not  examination  apart.^ 

The  purpose  of  requirements  that  the  wife  must  sign,  must 
be  examined  apart,  and  must  acknowledge,  is  to  make  sure 
that  she  gives  consent  to  the  conveyance.  So,  if  her  name  is 
not  in  the  body  of  the  instrument,  her  signature  may  show 
her  consent,  being  sworn  and  certified.  If  the  clerk's  certifi- 
cate is  in  the  proper  form  and  avers  her  acknowledgment,  and 
is  conclusive  on  other  matters,  it  is  held  that  it  cannot  be  con- 
tradicted by  evidence  that  the  wife  was  not  examined  apart 
from  her  husband.^ 

The  wife's  signature,  duly  obtained,  binds  her,  though  her 
name  may  not  have  been  used  in  the  instrument  she  signs.* 
But  when  it  is  stated,  in  the  concluding  part  of  the  deed,  that 
she  signs  merely  to  relinquish  her  right  of  dower,  the  signa- 
ture will  not  be  evidence  of  her  consent  to  the  entire  deed.^ 

A  clerk  of  probate  may  take  the  wife's  acknowledgment 
and  make  the  certificate,^  he  acting  as  the  minister  of  the 


61  Ala.  263.    Substantial  compliance,  Lyons  v.  Conner,  57  Ala.  181;  Scott 

when   no  fraud   charged.    Miller  v.  v.   Simons,   71    Ala.    352;    Butts  v. 

Marx,  55  Ala.  322 ;  Moog  v.  Strang,  Broughton,  72  Ala.  294.     The  wife, 

69  Ala.  98;  Downing  v.  Blair,  75  Ala.  owning  the  homestead,  need  not  be 

216 .  Parol  counter-testimony.    Bar-  examined     apart     when    conveying 

nett  V.  Proskauer,  62  Ala.  486.    Com-  with  her  husband,  in  Alabama.  Daw- 

^j(7re  Strauss  v.  Harrison,  79  Ala.  324,  son  v.  Burrus,  73  Ala.  Ill ;  Weiner 

as  to  substantial  compliance.  v.  Sterling,   61   Ala.    98 ;  Forsyth  v. 

1  Motes  V.  Carter,  73  Ala.  553.  under  Freer,  62,Ala.  443 ;  Cahall  v.  Building 

sta-tute,   acts  of   1876-7  (Ala.),  p.  33.  Ass'n,  61  Ala.  232. 

As    to  notary's  certificate,  etc.,   see  •'Shelton  v.  Aultman  (Ala,),  8  So. 

Morrell   v.    McDonald,  66   Ala   572;  232. 

Coleman  v.  Smith,  55  Ala.  368;  Mil-  '•Shelton  v.  Aultman,  82  Ala.  315: 

ler  V.  Marx,  55  Ala.  322.  Hood  v.  Powell,  73  Ala.  171. 

-  Jones  V.  Roper,  86  Ala.  210.  under  ^  Long  v.  Mostyn,  65  Ala.  543. 

Code  Ala.  (1876),  §  2822,  act  of  April  sshelton  v.  Aultman,  82  Ala.  315; 

23,  1873.    See  Code  Ala.  (1886),  §  2508.  Halso  v.  Seawright,  65  Ala.  431 ;  Hood 

Cahall    V.    Citizens'    Association,   61  v.  Powell,  73  Ala.  171. 
Ala.  232;  Miller  v.  Marx,  55  Ala,  322; 


WIFE  8   JOINDEU IN    GENERAL.  ■t2t> 

court,  presumably  authorized  by  it.     His  authority  may  be 
questioned.^ 

Under  the  provision  that  the  conveyance  of  a  homestead  by 
a  married  man  must  be  separately  acknowledged  by  his  wife, 
to  give  it  validity,  she  is  too  late  when  she  waits  till  her 
widowhood  before  making  the  acknowledgment.  The  title 
of  the  decedent's  heirs  is  not  affected  by  such  a  tardy  act." 
The  title  of  the  decedent  not  having  been  divested  before 
his  death,  nothing  can  be  done  by  the  widow  to  affect  their 
rights.^  The  principle  is  well  founded  that  a  deed,  void  foi- 
want  of  the  wife's  acknowledgment,  cannot  be  validated  by 
her  after  interests  of  third  parties  have  intervened.  She  can- 
not make  subsequent  acknowledgment  to  their  prejudice.* 

§  7.  lb.:  Wile's  Joinder  —  In  General. 

The  law  does  not  require  a  wife  to  join  in  selling  that  which 
she  does  not  own ;  it  does  not  make  her  one  of  the  grantors 
of  a  homestead  owned  by  her  husband,  when  it  makes  her 
consent,  and  even  her  signature  to  the  deed,  necessary  to  the 
validity  of  the  conveyance.  She  is  not  required  to  assume 
the  responsibility  of  the  conveyance,  nor  any  liability  as  a 
seller :  for  she  conveys  nothing  —  sells  nothing.  She  merely 
assents  to  her  husband's  selling  his  own  property  which  the 
law  inhibits  his  selling  without  her  consent ;  she  signs  to  show 
that  assent.     Conveyance  is  void  without  it.^ 

1  Russell  V.  State,  77  Ala.  89.  ties  required  by  law  for  the  eonvey- 

^  Richardson    v.    Woodstock   Co.,  ance  of  real  estate.'     The  defendant 

^0  Ala.  266 ;  8  So.  7.  has  a  life-estate  in  the  premises  set 

'  Cahall  V.  Ass'n,  61  Ala,  246 ;  Jack-  off  to  her  as  a  homestead,  as  against 

son  V.  Leek,  12  Wend.   105 ;  Shoen-  the  plaintiff's  mortgage.     Parkinson 

berger  v.  Zook,  34  Pa.  St.  24.  v.   McLane,   57   N.   H.  31 ;    Lake  v. 

*  Smith  V.   Pearce,    85    Ala    264;  Page,  63  N.  H.  318;  1  Atl.  Rep.  113. 

Wilson  V.   Mills  (N.   H.),  22  A.  455.  The  mortgage  note  was  not  signed 

Clark,  J. :  "  The  defendant  did  not  re-  by  the  defendant    It  was  neither  lier 

lease  her  homestead  by  signing  her  debt,  nor  a  contract  resi)ecting  her 

husband's    mortgage,    without    wit-  property,     and,     being    a      married 

nesses  or  seal,  after  it  was  delivered  woman,  she  could  not  bind  herself 

and  recorded.     Under  the  act  of  1851  by  a  promise  to  pay  it,  either  by  way 

no  release  or  waiver  of  the  home-  of    contract    or    estoppel.     Bank   v. 

stead  exemption   was  valid  '  unless  Buzzell,   60    N.   H.    189.      Case    dis- 

made  by  deed  executed  by  the  hus-  charged." 

•band  and  wife,  with  ail  the  formali-  &  Hood  v.  Powell,  73  Ala.  171 ;  Ca- 


430  KESTKAINT    OF    ALIENATION. 

The  married  debtor's  house,  on  leased  kind,  claimed  and  oc- 
cupied by  him  as  his  homestead,  cannot  be  conveyed  without 
his  wife's  signature  attached  after  examination  apart  from 
him,  where  the  law  requires  such  joinder  in  the  conveyance 
of  real-estate  homesteads.' 

Though  an  unmarried  owner  contracted  to  borrow  money 
and  mortgage  his  land  to  secure  the  payment,  if  he  marry 
between  the  dates  of  the  agreement  and  its  execution,  it  is 
held  that  his  wife  will  have  her  homestead  right  in  the  prop- 
erty, notwithstanding  the  fact  that  the  lender  be  ignorant  of 
the  marriage  when  accepting  the  mortgage  instrument  and 
parting  with  his  money .^  In  such  case,  the  lender  is  deceived 
and  morally  defrauded  by  the  borrower,  but  the  transaction 
is  legally  consummated  at  the  date  of  the  signing  of  the  mort- 
gage, which,  being  invalid  as  to  the  homestead  for  want  of 
the  wife's  signature,  fails  to  defeat  her  homestead  right. 

The  lender  would  thus  be  greatly  wronged,  but  the  rights  of 
the  wife  are  not  lost  or  affected  by  the  fraudulent  acts  of  the 
husband.^  It  cannot  be  safely  said  that,  in  every  state,  the 
mortgage  of  land  by  one  who  is  single  when  be  makes  the  con- 
tract, and  is  married  when  he  executes  the  mortgage,  and  who 
takes  the  money  of  the  mortgagee  who  believes  him  to  be  still 
unmarried  and  who  therefore  relies  upon  the  mortgage  as 
valid,  will  deprive  the  wife  of  any  homestead  right  as  against 
the  mortgage.  The  better  view,  perhaps,  is  that  she  w^ould  ac- 
quire such  right  by  marriage;  that  the  mortgage  would  be 
void;  that  the  money  would  be  fraudulently  obtained,  and 
that  the  lender  could  recover  it  from  the  false  mortgagor. 

An  attorney  in  fact  may  convey  the  homestead  of  a  husband 
and  wife  when  duly  authorized  by  them  to  do  so.*  But  if  not 
duly  authorized ;  if  the  wife  was  not  privily  examined  apart 
from  her  husband  before  signing  the  power  of  attorney,  he 

hall  V.  Cit.  Mut.  Ass'n,  61  Ala.  233 ;  2  Tolman  v.  Leathers,  1  McCrary, 

Long  V.  Mostyn,  65  Ala.  543 ;  March  329. 

V.  England,   65   Ala.  275;  Dooley  v.  SEli  v.  Gridley,  27  la.  S^a 

Villalonga.  61  Ala.  129;  Seaman  v.  4  Jones  v.  Robbins,  74  Tex.  615  (dis- 

Nolen,  68  Ala.  463 ;  Roger  v.  Adams,  tinguishing  Jones  v,   Goff,   63  Tex. 

66  Ala.  600.  253) ;   Patton  v.  King,  26  Tex.  686 ; 

1  Watts  V.  Gordon,  65  Ala  546.  Cannon  v.    Boutwell,   53  Tex.   626; 

Warren  v.  Jones.  69  Tex.  462,  467. 


wife's   joinder  —  IN    GENERAL.  4)31 

would  have  no  authorit}'^  as  their  agent  to  convey/  unless  the 
property  had  been  abandoned  as  a  homestead.'- 

A  wife,  who  did  not  join  her  husband  in  giving  a  ])ovver  of 
attorney  to  sell  his  land  to  ])ay  debts  contracted  before  the 
exemption  law  had  been  adopted  by  constitutional  provision, 
was  denied  homestead  in  the  land.^  She  never  had  had  any 
claim,  as  a  homestead  beneliciary,  against  such  antecedent  debts. 
The  reason  why  the  husband  was  competent  to  apply  the  land 
to  the  satisfaction  of  such  debts  is  that  there  never  was  home- 
stead as  to  them.  The  land  was  liable  to  judgment,  judgment- 
lien,  execution  and  forced  sale  for  those  debts ;  so,  to  pay  them 
without  force,  the  husband  alone  may  sell  the  land  to  get  the 
means  of  doing  so. 

The  wife's  sole  signature  (the  husband's  being  wanting)  to 
the  transfer  of  her  homestead  right  is  very  different  from 
such  signature  to  relinquish  dower.  In  the  latter  case  it 
would  be  effectual,  but  not  in  the  former.*  The  reason  is  ob- 
vious. The  dower  right  appertains  to  her  alone,  and  she 
alone  may  relinquish  it.  The  homestead  right  is  involved 
with  the  family  comfort  and  privilege,  of  which  she  and  her 
husband  together  are  made  the  managers,  ner  signature  is 
as  important  as  his,  in  the  giving  of  it  up;  though  the  title 
may  be  wholly  in  him. 

Where  the  wife's  signature  to  the  alienation  of  a  homestead 
owned  by  her  husband  is  not  required  by  law  to  give  the 
conveyance  efficac}",  the  only  purpose  of  her  signing  is  to  re- 
lin(juish  her  right  of  dower.  She  has  no  legal  interest  in  the 
property,  present  or  future;  no  vested  right;  no  means  of 
preventing  conveyance,  though  she  may  lose  her  home  by  it.^ 

Signing  and  acknowledging  "  solely  for  the  purpose  of  re- 
linquishing dower  interest "  as  stated  in  the  deed,  the  wife 
does  not  convey  her  homestead  interest,  though  the  deed  pur- 
ports to  convey  the  entire  property  and  is  signed  by  both  her 
and  her  husband.^ 

1  Jones  V.  Robbins,  supra;  Johnson  481 ;    Eisenstadt  v.   Cramer,   55    la. 

V.  Bryau,  63  Tex.  624 ;  Langt»n  v,  753.     Compare  Reynolds  v.  Morse,  52 

Marshall,  59  Tex.  296 ;    Ruleman  v.  la.  155. 

Prltchett.  56  Tex.  483.  »  Klenk  v.  Noble,  87  Ark.  298. 

^Ih.  6  Thompson  v.  Sheppard,  85  Ala. 

*  Leonard  v.  Mason,  1  Lea,  384.  611. 

*  Wilson  V.  Christopherson,  53  la. 


432  BESTKAINT    OF    ALIENATION. 

lie  alone  cannot  sell  the  homestead,  though  it  exceed  the 
maximum  limitation ; '  and  she  cannot  be  said  to  have  joined 
in  the  sale  when  she  expressly  limits  her  signature  to  the  re- 
linquishment of  her  dower. 

Warranty  of  the  title  of  homestead  property  by  husband 
and  wife  is  binding  upon  both.^  The  title  may  be  in  the  hus- 
band alone,  so  that  he  alone  is  really  the  grantor,  and  she 
merely  a  renunciator  of  the  homestead  right;  but,  in  such 
case,  if  there  is  a  contract  of  warranty  in  the  deed,  and  she 
knowingly  signs  it  after  all  the  requirements  of  law  have 
been  observed,  she  is  like  a  third  person  stepping  in  to  sign 
and  take  upon  himself  the  obligation  of  warranty. 

The  purchaser  of  a  homestead  from  a  husband  and  wife,  evi- 
denced by  a  deed  duly  executed,  given  in  payment  of  a  pre- 
existent  debt,  obtains  good  title  though  the  husband  may 
have  fraudulently  induced  his  wife  to  join  in  the  conveyance  — 
the  purchaser  being  ignorant  of  that  fact.' 

A  purchaser  of  property  previously  conveyed  by  a  married 
owner  was  held  unaffected  by  notice  that  the  prior  sale  was 
invalid  because  not  made  jointly  by  the  husband  and  wife.'* 
A  purchaser  without  notice  of  the  invalidity  of  the  previous 
alienation  of  a  homestead  is  free  from  a  claim  of  prior  date 
to  that  of  the  establishment  of  the  homestead  right,  where 
the  creditor  has  not  recovered  judgment  and  thus  created  a 
lien  on  the  premises.'^  Ordinary  antecedent  debts  are  not 
property  debts,  and  therefore  cannot  be  in  the  way  of  the  free 
conveyance  of  the  homestead.  They  become  property  debts 
only  when  a  judgment  lien  has  been  created.  They  differ 
from  other  ordinary  personal  debts  in  their  susceptibility  of 
being  converted  into  property  debts  of  the  homestead. 

After  a  husband  had  mortgaged  his  property,  both  himself 
and  his  wife  joined  in  the  sale  of  it.  Subsequently  she  bought 
it.  When  the  mortgagee  came  to  foreclose,  she  claimed  home- 
stead in  the  land,  but  was  denied.^ 

1  Id.  48  Tex.  144 ;  Pool  v.  Chase,  46  Tex. 

2  Amos  V.  Cosby,  74  Ga,  793.  210 ;  Miller  v.  Yturria,  69  Tex.  549. 

3  Webb  V.    Burney,   70  Tex.    322 ;  *  Lunt  v.  Neeley,  67  la.  97. 
Hussey  v.  Moser,  70  Tex.  42 ;  Hender-  5  Higley  v.  Millard,  45  la.  586. 

son  V.  Terry,  62  Tex.  284;  Pierce  v.        ^  Johnson  v.  Van  Velsor,  43  Michu 
Fort,  60  Tex.  464 ;  Williams  v.  Pouns,     208. 


LEASING,  AS    ALIENATION.  433 

A  wife  may  join  in  mortf^agiiig  lier  own  land  to  secure  her 
own  debt,  or  her  husband's,  and  the  lien  will  bear  on  the  in- 
cluded homestead.'  She  is  not  bound  by  a  mortgage  when 
she  does  not  join  in  the  act,  though  the  land  bo  simply  held 
under  title-bond.^  "Whether  her  signature  is  requisite  to  valid- 
ity, in  any  case  of  mortgage  or  sale  (when  she  has  no  title  in 
herself),  depends  upon  her  relation  to  the  homestead  estate  or 
right  of  herself  and  the  family  which  she,  with  her  husband, 
represents.    In  other  words,  whether  there  is  homestead  or  not. 

When  no  part  of  land  mortgaged  is  the  homestead,  the 
wife's  signature  is  superfluous.  A  subsequent  selection  of  n 
part  of  the  mortgaged  land,  by  the  owner  (the  mortgagor),  as 
his  homestead,  and  its  occupancy  as  such  by  himself  and  his 
family,  would  have  no  effect  on  the  mortgage.  It  could  not 
be  treated  as  invalid  for  want  of  the  wife's  signature.^  If 
valid  when  executed,  the  mortgage  remains  valid,  unaffected 
by  the  subsequent  declaration  of  homestead.  It  has  been 
fastened  upon  the  property;  the  land  has  become  a  thing  in- 
debted ;  and  it  would  be  novel  indeed,  and  unjust,  to  allow 
the  mortgagors  to  deprive  the  mortgagee  of  his  conventional 
lien  by  anything  that  they  could  do  short  of  payment. 

§  8.  Leasing,  as  Alienation. 

When  ordained  by  a  constitution  or  statute,  that  the  home- 
stead of  a  husband  and  wife  shall  not  be  alienated  without  their 
joint  consent/  the  inhibition  is  applicable  to  a  lease  which  de- 
prives the  beneficiaries  of  their  occupancy  of  the  home.  The 
husband  alone  cannot  lease  the  premises  without  his  wife's 
joinder,  though  with  her  knowledge  and  verbal  acquiescence. 
A  husband  leased  his  homestead  of  eighty  acres  to  a  gas  com- 
pany for  twenty-five  years,  giving  them  the  privilege  of  pros- 
pecting for  coal,  and  for  gas,  oil  and  other  minerals ;  and  of 
erecting  engine  houses,  storehouses,  derricks  and  other  ma- 
chinery. 

Nearly  a  year  afterwards,  when  the  lessee  had  entered  upon 
the  premises  and  expended  large  sums  in  erecting  machinery 

1  Drye  v.  Cook,  14  Bush,  459.  3  Gibson  v.  Mundell,  29  O.  St.  523: 

-i  Griffin    v.    Proctor's    Adm'r,    14    Boreham  v.  Byrne,  83  Cal.  23,  £5. 
Bush,  571.  '♦Const    of   Kansas,   art   15,   §5  9; 

Comp.  Laws  of  Kas.  (1879),  cli.  38,  {^  1. 
28 


434  RESTRAINT    OF    ALIENATION. 

and  buildings  and  in  boring  wells,  both  husband  and  wife  con- 
tracted to  sell  the  homestead ;  and  they  recognized  the  lease, 
but  did  not  recite  it,  in  the  contract.  The  recognition  did  not 
correspond  with  the  lease  that  had  been  given  in  some  mate- 
rial particulars.  This  contract  to  sell  was  followed  by  a  con- 
veyance in  due  form  and  substance,  regularly  signed  by  both 
husband  and  wife.  This  sale  was  succeeded  by  one  from  the 
grantee  to  a  land  company:  so  the  case  now  considered  was 
between  the  two  companies. 

The  trial  court  found  that  one  of  the  conditions  of  the  lease 
from  the  husband  to  the  gas  corapan}'  was  that  the  lessee 
"  shall  not  materially  or  unreasonably  interfere  with  the  occu- 
pation and  use  of  said  premises,"  by  the  lessor  and  his  family, 
as  a  hom-estead,  or  "  enter  upon  the  surface  of  the  land  pur- 
chased and  platted  .  .  .  into  lots  and  streets,  or  drill  or 
sink  shafts  thereon,  but  is  entitled  to  the  gas,  coal,  oil  and 
other  mineral,  under  the  surface."  On  the  other  hand,  the 
appeal  court  said  that  the  lessee  had  power,  under  the  lease, 
to  occupy  any  part  or  the  whole  of  the  homestead.  These 
different  conclusions,  or  inferences  from  the  lease,  are  impor- 
tant when  the  question,  whether  the  wife's  occupancy  of  the 
homestead  was  disturbed  by  the  lease,  is  made  a  factor  in  the 
settlement  of  the  main  question,  whether  the  husband  was  in- 
hibited by  the  constitution  from  leasing  without  his  wife's 
consent.  The  trial  court  found  for  the  gas  company:  the 
supreme  court  did  not  affirm  the  decision. 

The  latter  held  that  the  lease  of  a  homestead,  b}^  the  hus- 
band alone,  is  such  alienation  as  the  above-cited  constitution 
and  statute  prohibit,  if  it  give  the  lessee  possession  of  the 
premises  in  such  a  way  as  to  interfere  with  the  wife's  posses- 
sion and  enjoyment  of  them.  And,  after  reciting  the  facts, 
and  showing  that  the  wife's  silence  when  the  lease  was  given, 
her  recoo^nition  of  the  existence  of  a  lease  when  she  sig'ned 
the  contract  to  sell,  and  her  knowledge  of  the  transaction,  did 
not  amount  to  such  "  consent "  as  the  legislator  had  contem- 
plated, the  court  reversed  the  judgment  and  remanded  the 
case.^ 


1  Land  Co.  v.  Gas  Co.,  43  Kas.  518 ;    516 ;  Coughlin  v.  CoughUn,  26  Kas. 
Pilcher  v.  At  etc.  R.  Co.,  38  Kas.     116. 


EXCHANGE    OF    HOMESTEADS.  435 

It  is  to  be  inferred  that  the  leasing  of  a  part  of  tlie  home- 
stead without  his  wife's  consent  and  without  disturbing  her 
occupancy  of  the  home  would  not  have  been  considered  such 
alienation  as  is  prohibited.  The  whole  homestead  is  doubtless 
expressed  when  the  constitution  says  a  homestead;  and  the 
inliibition  is  that  it  "  shall  not  bo  alienated  without  the  joint 
consent  of  husband  and  wife  when  that  relation  exists."  Leas- 
ing for  twenty-five  years —  for  ten  —  for  one  —  is  all  the  same 
so  far  as  its  character  as  a  species  of  alienation  is  concerned. 

§  9.  Exchange  of  Homesteads. 

Whoever  may  sell  his  homestead  may  swap  it  for  another. 
Man  and  wife  may  do  so  where  their  joinder  is  requisite  to 
sale  or  mortgage.  The  new  homestead  acquired  by  exchange 
must  have  the  same  record  notice  to  the  public  that  was  nec- 
essary to  the  old,  in  states  where  record  is  required,  such  as 
filing  the  title,  inscribing  Homestead  on  its  margin,  or  the  like. 
If  both  the  exchanged  properties  were  exempt  before  the 
mutual  transfer,  both  the  contracting  parties  should  furnish 
such  record  evidence,  each  for  his  own  new  acquisition. 

The  voluntary  exchange  of  a  homestead  for  property  not 
previously  exempt  does  not  have  the  effect  of  giving  it  the 
exempt  character,  as  a  general  rule.  The  legislator  has  speci- 
fied the  kind  of  property  to  which  it  gives  protection  from 
the  creditor,  and  does  not  leave  that  discrimination  to  the 
debtor.  So  when  that  which  the  law  exempts  has  been  vol- 
untarily given  by  the  owner  for  something  not  clothed  with 
such  immunity,  or  has  been  converted  into  money  (unless  the 
money  is  held  temporarily  as  a  means  of  obtaining  other 
property  exempt  by  law),  the  exemption  does  not  attach  (as 
a  general  proposition)  to  that  which  is  taken  in  lieu  of  ex- 
empt property.^ 

It  is  not  essential,  where  propert}^  is  exchanged,  that  the 
realty  given  for  a  homestead  shall  have  been  exempt.  That 
which  is  received  may  have  its  homestead  character  from 

1  Andrews  v.  Rowen,  28  How.  Pr.  Friedlander  v.  Mahoney,  31  la.  815 ; 

128;  Scott  V.  Brighara,  27  Vt  561;  Wygant  v.  Smith,  2   Lans.  (N.   Y.) 

Edson  V.  Trask,  23  Vt.  18 ;  Schneider  185 ;  Pate  v.  Fertilizing  Co.,  54  Ga. 

V.    Bray,    59    Tex.    668    (explaining  515 ;  Watkins  v.  Blatschinski,  40  Wia 

Wolfe  V.  Buckley,  52  Tex.  641,  and  347. 
Whittenberg  v,  Lloyd,  49  Tex.  633) ; 


436  RESTRAINT    OF    ALIENATION. 

other  causes  —  not  from  the  peculiar  nature  of  the  land  or 
money  given  for  it.^  The  realty  given  in  exchange  may  be 
wild  land,  or  mill  property  or  business  houses  —  not  a  family 
home.  The  realty  received  may  be  a  farm,  or  a  house  and  lot 
in  town,  ready  for  family  habitation  and  homestead  dedica- 
tion, or  it  may  have  been  the  exempt  home  of  another  now 
received  free  from  liens. 

If  the  property  received  in  exchange  is  itself  legally  exempt, 
it  does  not  lose  this  characteristic  by  the  transaction. 

The  rule  applies  to  chattels,  so  that  an  article  exempt  may 
be  given  for  another  similar  article  belonging  to  the  exempt 
class,  without  the  loss  of  legal  protection  from  execution;  and, 
as  a  general,  though  not  universal  rule,  real  property  may  be 
exchanged  with  like  result. 

As  an  exempt  farming  utensil  may  be  so  worn  out  that  a 
new  one  is  needed  in  its  place,  so  an  exempt  family  dwelling 
may  be  in  such  need  of  repair  that  it  had  better  be  traded  off 
for  a  new  house.  While  the  new  one  would  come  into  the 
possession  of  the  exchanger  with  all  the  existing  burdens 
upon  it  (just  as  the  old  one  would  go  with  whatever  liens  for 
purchase-money,  taxes,  improvements  or  other  liabilities  which 
it  might  bear),  it  would  have  such  immunity  in  the  future  as 
its  predecessor  had  possessed. 

There  is  difference,  however,  between  exempt  chattels  and 
realty  dedicated  as  homestead,  in  this:  No  particularized 
farming  utensil,  oxen,  household  furniture,  or  the  like,  is 
designated,  marked,  branded  or  set  apart  as  exempt  before 
the  executioner  comes ;  the  debtor  is  allowed  by  law  certain 
kinds  of  articles,  but  he  is  not  required  to  have  them  distin- 
guished from  the  rest  of  his  personalty  by  dedication,  record- 
ation or  any  act,  beforehand ;  he  may  therefore  swap  horses 
or  any  chattel,  and  hold  as  exempt  what  he  happens  to  have, 
within  the  legal  exemption,  when  the  oflicer  comes  to  sell  his 
goods.  It  is  rarely  required  that  exempt  chattels  shall  be  de- 
scribed and  recorded,  but,  where  required,^  the  exchange  of 
them  is  like  that  of  recorded  homesteads ;  the  thing  taken  in 
exchange  is  not  necessarily  exempt  by  reason  of  the  recorda- 
tion of  what  was  given  in  exchange.   The  homestead,  in  many 

1  Emporium  Ass'n  v.  Watson  (Kas.),  2  Dean  v.  King,  13  Ired.  (N.  C.)  20 ; 
25  Pac.  586.  Lloyd  v.  Durham,  1  Wiust.  (N.  C.)  283. 


EXCHANGE    OF    HOMESTEADS.  437 

states,  mnst  have  been  previously  selected  according  to  forms 
of  law;  in  most  of  them,  must  be  actuall}' occupied  by  the 
family  as  a  home;  and,  wl\en  allotted  by  the  court  just  before 
execution  directed  against  realty  in  general,  it  must  be  in 
a  state  of  occupancy  —  except  where  the  law  merely  exempts 
a  given  value  of  realty  without  special  regard  to  its  home- 
stead character. 

The  ordinary  creditor,  being  without  a  lien  to  secure  his 
debt,  is  not  concerned  in  the  exchange,  by  his  debtor,  of  one 
piece  of  exempt  property  for  another,  whether  it  be  real  or 
personal.  lie  loses  no  right  or  remedy,  since  he  had  none 
against  the  property  first  held  by  his  debtor. 

The  law  applicable  to  the  exchange  of  homesteads  is  so  sim- 
ple, and  so  general  in  all  the  states,  that  it  seems  unnecessary 
to  extend  the  treatment  of  the  subject  to  any  great  length. 
The  decisions  of  a  single  state  may  suffice  to  illustrate  the 
subject. 

It  is  generally  allowed  that  an  old  homestead  may  be 
changed  for  a  new  one,  but  not  everywhere  minutely  pro- 
vided how,  and  under  what  circumstances,  it  may  be  done. 
Where  it  is  authorized  that  the  owner  may  change  the  metes 
and  bounds,  and  the  record  of  the  plat  and  description,  from 
time  to  time,  or  may  make  an  entire  change,  but  "  shall  not 
prejudice  conveyances  or  liens  made  or  created  previously 
thereto,  and  no  such  change  of  the  entire  homestead,  made 
Avithout  the  concurrence  of  the  husband  or  wife,  shall  affect 
his  or  her  right  or  that  of  the  children," '  the  new  homestead, 
if  itself  free  from  incumbrances  when  selected,  takes  the  place 
of  the  old  in  relation  to  debts  contracted  prior  to  the  first  se- 
lection and  during  its  continuance.^  Though  the  new  home  is 
liable  for  debts  ante-dating  the  selection  of  the  old  one,'  it  is 
not  for  those  subsequently  contracted  and  not  prosecuted  to 
judgment,*  unless  the  value  of  the  new  place  exceeds  that  of 
the  first  ^  —  other  money  being  requisite  to  its  purchase  be- 
sides the  proceeds  of  the  first  homestead  —  so  as  to  render  it 
answerable  for  obligations  to  the  extent  for  which  the  sum 

1  McC.'s  la.  Code,  t<  3175  (2000).  *  Pearson   v.   Minturn,   IS  la.   36 ; 

2  Sargent  v.  Chubbuck.   19  la.   37;  Robb  v.  McBride,  28  la.  386. 
Elston  V.  Robinson,  21  la.  531.  5  Lay  v.    Tenipleton,    59   la.    684; 

3  Bills  V.  Mason,  42  la.  329.  Benhani  v.  Chamberlain,  89  la.  358. 


438  RESTRAINT    OF   ALIENATION. 

newly  invested  was  liable.  The  fact  that  additional  money 
has  been  invested  will  not  render  any  part  of  the  new  home 
liable  unless  its  value  is  greater  than  the  old  one  w^as.  The 
burden  of  proof  is  on  him  who  alleges  that  his  new  home- 
stead was  bought  with  the  proceeds  of  the  old,  for  the  pur- 
pose of  having  it  declared  free  from  claims  prior  to  its  origin,* 
And  when  it  was  impracticable  to  find  what  part  of  the  value 
of  the  farm  was  exempt  before  its  exchange  for  another,  the 
new  homestead  could  not  be  relieved  from  a  debt  existing  at 
the  date  of  the  exchange.^ 

The  holder  of  a  homestead  exchanged  it  for  a  half  interest 
in  another  property  in  which  he  already  owned  the  other  half 
interest.  The  latter  half  continued  to  be  subject  to  a  judg- 
ment lien  created  before  the  exchange.'  Changing  residence 
from  one  place  to  another,  and  complying  wnth  the  exemption 
laws  so  as  to  make  the  second  take  the  place  of  the  first  as  a 
homestead,  operates  so  as  to  make  a  general  judgment  lien, 
then  bearing  on  the  second,  apply  to  the  first,  while  the  sec- 
ond is  relieved  from  it,  just  as  the  first  was  exempt  before  the 
exchange :  so  it  has  been  held.* 

An  owner  who  gives  up  one  for  another  homestead,  and 
has  the  latter  conveyed  to  his  wife,  does  not  thus  forfeit  the 
protection  against  the  debts  which  could  not  be  urged  against 
the  first  property.  The  second  occupies  the  same  exempt  po- 
sition, as  though  he  had  taken  the  title  of  it  in  his  own  name.* 

Changes  in  the  metes  and  bounds  of  a  homestead  cannot  be 
made  to  affect  the  rights  of  a  mortgagee,  or  any  third  person, 
without  the  consent  of  the  party  interested,  and  that  of  both 
husband  and  wife  when  the  homestead-holder  is  married.^ 

§  10.  Proceeds  for  Investraent  in  New  Home. 

In  making  an  exchange,  reasonable  time  is  allowed  with  re- 
gard to  the  investment  of  the  proceeds  of  the  old  exempt  res- 
idence in  the  purchase  and  establishment  of  a  new  one,  the 
removal  from  one  home  to  the  other,  and  the  like.^     During 

1  First  N.  Bank  v.  Baker,  57  la.  197 ;        3  Thompson  v.  Rogers,  51  la.  333. 
Paine  v.  Means,  65  la  547 ;  First  N.        *  Furman  v.  Dewell,  35  la.  170. 
Bank  v.  Thompson,  73  la.  41T.     See        » Jones  v.  Brandt,  59  la.  332. 
Atkinson  v.  Hancock,  67  la.  452,  and        t*  Goodrich  v.  Brown,  G3  la.  247. 
Coad  V.  Neal,  55  la.  528.  ?  Cowgell  v.  Warrington,  66  la,  666 ; 

2  Paine  v.  Means,  65  la,  547.  Watson  v.  Saxer,  102  111.  585. 


PROCEIiDS    FOR   INVESTMENT    IN    NEW    HOME. 


439 


such  interval,  debts  contracted  are  as  though  incurred  after 
the  dedication  of  the  new  home,  unless  the  debtor  has  fraud- 
ulently gained  credit  by  holding  out  that  his  means  of  pay- 
ment were  not  exempt.^  1'bey  must  be  held  for  the  distinct 
purpose  of  purchasing  a  new  home,  since  they  otherwise 
would  be  liable  to  garnishment  ^  or  any  remedy  of  the  creditor. 
If  one  sells  his  homestead  and  invests  the  proceeds  in  prop- 
erty in  a  state  other  than  that  in  which  his  homestead  was 
situated,  and  afterwards  sells  that  property,  he  cannot  claim 
exem])tion  for  its  proceeds  on  his  return  to  his  former  state. 
The  homestead  character  which  had  attached  to  the  price  re- 
ceived for  his  home  would  be  lost  by  the  investment  in  an 
other  state.' 


1  Benhaiii  v.  Chamberlain,  39  la. 
358;  State  v.  Geddis,  44  la.  537. 

^Huskius  V.  Hanlon,  72  la.  37. 

3  Dalton  V.  Webb  (la.),  50  N.  W.  58. 
Granger,  J. :  "  Prior  to  May,  1885, 
the  plaintiff  was  owing  the  defend- 
ant Webb,  which  claim  has  since 
May,  1885,  been  placed  in  judgment, 
aggregating  some  $576.15.  Prior  to 
May,  1885,  the  plaintiff  was  the  owner 
of  four  hundred  and  fifty-four  acres 
of  land  in  and  about  the  town  of 
Tabor,  Iowa.  In  May,  1885,  the 
plaintiff  sold  the  entire  tract  to  C.  V. 
Lawrence  for  $15,000,  which  amount 
was  exhausted  by  the  payment  of  in- 
cumbrances on  the  laud  and  an  in- 
debtedness of  plaintiff  to  Lawrence. 
A  very  much  disputed  question  in 
the  case,  and  one  of  grave  doubt  un- 
der the  evidence,  is  whether  or  not  it 
was  then  agreed,  as  a  part  of  the 
consideration  for  the  land,  that  the 
plaintiff  should  continue  to  occupy 
his  home  on  the  land  during  his  life, 
he  then  being  a  man  some  sixty -nine 
or  seventy  years  of  age.  It  is  a  fact 
that  he  continued  to  reside  on  the 
land,  or  a  part  of  it,  for  two  years 
after  the  sale,  when  a  son  of  C.  F. 
Lawrence,  to  whom  part  of  the  land 
had  been  deeded,  paid  to  the  plaintiff 


$2,500  to  vacate  the  premises.  Of  this 
$2,500,  $1,000  were  paid  on  an  indebt- 
edness of  plaintiffs  to  one  AVadham, 
and  of  the  remainder  about  $700 
were  invested  in  wliat  the  plaintiff 
now  claims  as  his  homestead,  one- 
half  being  paid  on  the  purchase  price 
and  the  other  half  on  improvements. 
The  remainmg  $800  were  by  the 
plaintiff  invested  in  an  attempt  to  pro- 
vide him  a  homestead  in  Nebraska, 
under  the  general  homestead  law, 
the  money  being  used  in  buildings 
and  other  improvements  on  the  land. 
Afterwards  the  homestead  claim  in 
Nebraska  was  sold  for  $1,350  and  this 
amount  was  paid  towards  the  present 
homestead  of  plaintiff.  The  present 
homestead  was  purchased  of  one 
Goodell.  the  purchase  price  being 
$2,150,  the  plaintiff  assuming  a  mort- 
gage thereon  of  $800.  Plaintiff's 
statement  in  evidence  is :  '  For  the 
property  I  now  claim  as  a  homestead 
I  paid  Mr.  Goodell  about  $2,150.  I 
took  it  subject  to  a  mortgage  of  $800, 
paid  $350  of  the  homestead  money  on 
it,  and  the  balance  was  paid  from 
money  coming  from  Nebraska  land.' 
For  the  purposes  of  the  case  we  will 
assume  that  the  $1,500  that  plaintiff 
received  from  Lawrence  in  1887  to 


440 


RESTRA.INT    OF    ALIENATION. 


The  circumstances  of  delay  in  procuring  the  new  place  may 
be  such  as  to  cut  off  I'roni  it  the  exemption  that  attached  to 
the  old.  Investment  of  the  proceeds  of  the  hitter  in  another 
state  will  debar  the  owner  from  claiming  exemption  from 
debts    antedating  the  establishment  of  his   new  home    pur- 


vacate  the  premises  are  the  proceeds 
of  a  liomestead  interest,  without  say- 
ing- that  such  would  be  our  finding 
upon  a  consideration  of  the  evidence. 
The  defendant  Webb  has,  by  an  exe- 
cution issued  on  his  judgment,  levied 
on  the  present  homestead,  and  this 
action  is  to  determine  the  liability  of 
the  homestead  therefor.  The  district 
court  decreed  the  homestead  exempt. 
In  doing  so,  we  think,  it  erred.  No 
more  than  $850  of  the  purchase  price 
of  a  homestead  representing  a  value 
of  about  $3,500  can  be  said  to  be  the 
proceeds  of  the  former  homestead, 
unless  we  hold  that  the  $1,350  for  the 
Nebraska  land  were,  when  invested 
in  this  homestead,  the  proceeds  of  the 
former  homestead,  and  to  be  pro- 
tected as  such.  To  so  hold  is  to  over- 
rule the  case  of  Rogers  v.  Raisor,  60 
la.  '655 ;  14  N.  W.  Rep.  317.  That 
case,  in  its  purpose,  is  an  exact  paral- 
lel to  this,  and  the  principle  there  an- 
nounced is  conclusive  of  the  question 
we  are  considering.  In  that  case  the 
proceeds  of  an  Iowa  homestead  were 
taken  to  Missouri  and  invested  in  a 
homestead  there.  Afterwards  the 
Missouri  homestead  was  sold  and  an- 
other homestead  purchased  in  Iowa. 
It  was  sought  to  be  subjected  to  the 
payment  of  a  debt  from  which  the 
former  Iowa  homestead  was  exempt. 
In  deciding  the  case,  the  following 
language  is  used  :  '  What,  then,  was 
the  character  impressed  on  the  pro- 
ceeds of  the  Iowa  homestead  when 
taken  to  Missouri  for  re-investment? 
The  laws  of  Iowa  ceased  to  operate 
upon  it,  and  to  affect  its  ciiaracter.  as 
soon  as  it  was  invested  in  real  estate 


in  the  state  of  Missouri.  It  was  not 
the  proceeds  of  the  sale  of  a  home- 
stead under  the  laws  of  Missouri,  for 
those  laws  can  apply  only  to  a  home- 
stead held  under  the  laws  of  that 
state.  It  follows  that  the  fund  aris- 
ing from  the  sale  of  the  Iowa  home- 
stead, upon  bemg  carried  into  Mis- 
souri, lost  the  distinctive  character  of 
being  the  proceeds  of  a  sale  of  a 
homestead.'  The  case  holds  that  the 
new  homestead  in  Iowa  is  not  ex- 
empt. The  $350  of  the  proceeds  of 
the  former  homestead  invested  in  the 
purchase  price  of  this  could  not 
change  the  rule.  The  homestead  laws 
rec;eive  and  are  entitled  to  liberal 
interpretation,  but  it  should  only  be 
done  within  the  spirit  of  the  legisla- 
tive purpose.  At  best  but  $800  of  the 
$1,350  from  the  Nebraska  land  were 
ever  the  proceeds  of  a  homestead, 
and  under  the  rule  announced  that 
part  lost  its  character  as  homestead 
property,  and  is  no  longer  entitled  to 
exemption.  Some  importance  is  at- 
tached to  the  fact  that  the  wife  did 
not  go  to  Nebraska  with  her  husband, 
nor  consent  to  the  use  of  the  money 
there.  It  is  triie  that  she  did  not  de- 
sire to  go,  and  that  plaintiff,  because 
of  her  health,  did  not  think  she 
should,  but  tlie  record  does  not  show 
that  she  ever  had  or  made  any  ob- 
jection to  the  investment  of  the 
money  there;  nor  does  it  appear  that 
before  the  investment  in  Nebraska 
there  was  anj"  purpose  to  invest  it  in 
the  Iowa  homestead.  We  think  there 
should  be  a  decree  dismissing  plaint- 
iff's petition,  and  the  cause  is  re- 
manded for  that  purpose.  Reversed," 


PROCEEDS    FOK    INVESTMENT    IN    NEW    HOME.  441 

chased  by  tl  ose  proceeds  when  brought  back.  The  proceeds 
have  lost  their  exempt  character  and  therefore  cannot  trans- 
fer it  to  the  new  purchase:  so  that  comes  into  being  with  all 
the  res})onsibility  of  an  original  establishment  under  the  ex- 
emption laws.' 

The  proceeds  of  the  sale  of  a  homestead  are  exempt  if  "  held 
with  the  intention  to  procure  another  homestead  therewith  " 
within  the  time  prescribed  by  statute,  or  to  complete  a  new 
homestead  within  such  time.- 

It  is  held  tluit  a  statutory  provision  exempting  the  pro- 
ceeds of  a  homestead  for  two  years  when  held  to  purchase  an- 
other, does  not  make  it  a  condition  that  the  holder  shall 
remain  in  the  state  for  the  time,  nor  that  he  shall  intend  to  pur- 
chase his  new  homestead  within  the  state.'  This  is  very  gen- 
erous towards  other  states.  The  policy  of  the  law  having 
state  welfare  in  view  by  the  conservation  of  homes  is  here 
broadened  so  as  to  aid  in  the  protection  of  them  in  sister  com- 
monwealths: a  commendable  liberality,  if  the  creditor  be  left 
out  of  sight.  Were  all  the  states  to  act  upon  the  same  prin- 
ciple, the  stability  of  homes  would  be  better  secured. 

The  rule  governing  involuntary  exchanges  is  that  the  prop- 
erty received  in  lieu  of  exempt  property  takes  the  exemption 
character,  whether  it  had  it  before  or  not.  Illustration  is 
found  where  exempt  property  is  burned,  and  the  insurance 
paid  takes  its  place  under  the  protection  of  the  law  from  ex- 
ecution.* 

A  homestead  having  been  sold,  and  the  price  invested  in  a 
new  exempt  residence,  there  was  not  necessarily  any  interim 
when  either  the  land  or  the  price  was  liable  for  the  ordinary 
obligations  of  the  owner.^ 

If  homestead  land  is  exchanged  for  other  land,  or  sold  and 

'  Roj^ers  v.  Raisor,  60  la.  355.  to  personal  property  in  New  Hamp- 

■2  R.  S.  of   Wis.,   g   2983 ;  Bailey  v,  shire :  Wooster  v.  Page,  54  N.  H.  125  ; 

Steve,  70  Wis.  316  ;  Biuzel  v.  Grogan,  S.  C,  20  Am.  Rep.  128 ;  Paul  v.  Reed, 

67  Wis.  147 ;  Scofielcl  v.  Hopkins.  61  52   N.  H.  136 ;  Manchester   v.  Burns, 

Wis.  370;  Hewett  v.  Allen,  54  Wis.  45   N.  H.    488;  Morse   v.    To«ns,   45 

583.  N.  H.  185.     See  Brown  v.  Heath,  45 

» Hewett  V.  Allen,  54  Wis.  583.  N.  H.  168. 

*  Houghton  V,  Lee.  50  Cal.  101 ;  Cam-        5  Cheney  v.  Rosser,  59  Ga.  861.  Pro- 

eron  V.  Fay,  55  Tex.  58 ;  German  Ins.  viding  for  re-investmeut :     McLellan 

Co.  V.  York  (Kas. ),  29  P.  586.   Con  tra  as  v.  Weston,  59  Ga.  883. 


442 


KESTEAINT    OF    ALIENATION. 


other  land  taken  in  payment  with  the  design  of  living  upon  it 
as  a  homestead,  it  does  not  matter  that  the  husband  owned 
the  former,  and  the  deed  to  the  latter  is  given  to  the  wife. 
For  homestead  purposes,  it  is  immaterial  which  spouse  holds 
the  title.  The  husband,  as  head  of  the  family,  is  presumptively 
in  possession  when  both  live  together  and  keep  house  on  the 
property.  This  occupancy  gives  notice;  so  creditors  of  the 
wife  are  jiresumed  to  know  that  the  property  is  the  family 
homestead  though  the  paper  title  be  in  her  and  not  in  the 
head  of  the  household.^ 


1  Broome  v.  Davis  (Ga.),  13  S.  E. 
749.  Bleckley,  C.  J. :  "  Before  the 
translation  of  our  Brother  Lumpkin 
to  this  bench,  though  his  judicial  ac- 
curacy was  remarkable,  he  shared  in 
the  fallibility  which  is  inherent  in  all 
courts  except  those  of  last  resort.  In 
some  rare  instances  he  committed 
erroi',  and  the  very  last  of  his  errors 
is  now  before  us  for  correction.  The 
facts  of  the  case  are  correctly  set 
forth  in  the  reporter's  statement. 
1.  It  is  settled  law  that  property  paid 
for  in  full  with  other  property  pre- 
viously set  apart,  in  due  and  proper 
manner,  under  the  homestead  and 
exemption  laws,  takes  the  place  of 
the  latter,  and  is  impressed  with  the 
homestead  character.  Mitchell  v. 
Prater,  78  Ga.  767 ;  3  S.  E.  Rep.  658 ; 
Murray  v.  Sells,  53  Ga.  357;  Cheney 
V.  Rodgers,  54  Ga.  168,  59  Ga.  861 ; 
Morris  v.  Tennent,  56  Ga.  577  ;  Dodd 
V.  Thompson,  63  Ga.  393.  This  is  true, 
though  the  conveyance  of  the  new 
property  be  made  to  the  wife  {supra, 
78  Ga.,  3  S.  E.  Rep.,  and  53  Ga.) ;  or 
to  the  husband  and  wife  (supra,  54 
Ga.);  and  the  homestead  right  can 
be  asserted  against  a  purchaser  with 
notice  {supra,  53  and  54  Ga.).  A 
mortgagee  stands  on  the  same  plane 
with  a  purchaser.  Lane  v.  Partee,  41 
Ga.  202.  2.  Could  the  creditor  and 
mortgagee  of  the  wife,  his  rights 
having  attached  while  the  paper  title 


to  the  land  in  controversy  was  in  her, 
stand  upon  that  title,  and  claim  pro- 
tection as  a  mortgagee  without  no- 
tice, notwithstanding  the  husband 
was  at  the  same  time  in  actual  pos- 
session of  the  premises?  Possession 
of  land  is  notice  to  the  world  of 
whatever  right  or  title  the  occupant 
has.  Cogan  v.  Christie,  48  Ga.  585 ; 
Sewell  v.  Holland,  61  Ga.  608;  At- 
kins v.  Paul,  67  Ga.  97 ;  Finch  v.  Beal, 
68  Ga.  594 ;  Association  v.  Atlanta,  77 
Ga.  496.  In  this  state,  notwithstand- 
ing his  reduced  importance  as  a  do- 
mestic factor,  the  husband  is  still  the 
head  of  his  family,  and,  though  his 
wife  may  reside  with  him,  she  does 
not  thereby  divest  his  possession  of 
the  homestead,  and  make  the  posses- 
sion her  own.  Presumptively  he  is 
the  owner.  Primrose  v.  Browning, 
59  Ga.  69 ;  Neal  v.  Perkerson,  61  Ga. 
346 ;  City  of  Atlanta  v.  Word,  78  Ga. 
276.  While  for  most  purposes  this 
presumption  would  be  rebutted  by 
the  mere  production  of  a  conveyance 
from  a  third  person  to  the  wife,  yet 
this  alone  should  not  excuse  a  stran- 
ger, about  to  give  her  credit  on  the 
faith  of  the  premises,  from  consult- 
ing the  husband  touching  his  rights 
as  the  actual  occupant  His  posses- 
sion, to  be  of  any  foice  at  all  as  no- 
tice, must  be  treated  as  directing  in- 
qun-y  to  be  made  of  himself,  and  not 
as  a  suggestion  to  go  to  his  wife  and 


PKOCEEDS    HELD    FOR    GENERAL    PURPOSES.  443 

§  11.  Proceeds  Held  for  General  Purposes. 

When  a  homestead  is  voluntarily  sold,  its  proceeds  are  not 
exempt,  if  held  for  general  purposes.*  Homes  are  not  con- 
served by  such  sales.  The  very  purpose  of  home  exemption 
is  thwarted  by  them.  Exempt  lands  sold,  and  the  proceeds 
converted  into  merchandise,  are  precisely  as  though  exempt 
chattels  were  exchanged  for  other  personal  property  of  a 
character  which  the  law  docs  not  hold  inviolate  from  forced 
sale.^ 

Sometimes  the  term,  homestead,  is  made  to  stand  for  a  cer- 
tain monetary  exemption  to  the  debtor,  composed  of  realty 
and  personalty,  or  either;  and,  under  such  provision,  things 
taken  in  exchange  for  exempt  property  have  been  covered 
with  the  mantle  of  inviolability,  when  they  were  the  same 
kind  of  property  that  had  been  given  in  exchange.^ 

When  the  price  of  the  homestead  is  held  with  no  purpose 
to  convert  it  into  a  new  home,  it  is  as  though  it  had  been  in- 
vested in  stocks  or  merchandise,  and  is  not  exempt. 

Intention  to  invest  the  proceeds  of  a  homestead,  voluntarily 
sold,  in  another  homestead,  must  exist  at  the  time  of  the  sale 
to  render  them  exempt.  Illustration  is  given  as  follows: 
Smith  never  purchased  or  owned  any  land  after  selling  his 
homestead,  and  there  is  nothing  in  the  record  [of  the  case 
being  tried]  that  tends  to  show  that  he  had  any  expectation 
of  purchasing  any,  except  his  own  testimony  that  he,  at  the 
time  of  the  trial,  intended  to  use  the  proceeds  to  buy  another 

deal  with  her  upon  what  she  might  property,  except  with  the  approha- 

say,  fortilied  by  documents  in  her  tion  of  the  proper  judicial  officer, 

possession.     So  long  as  a  man  clings  Code,  §§  2025,  5212,  5218.     The  judg- 

to  his  home  in  person,  he  has  a  right  nient  is  reversed." 

to  be  treated  by  strangers  as  the  head  i  Mann  v.  Kelsey,  71  Tex.  609 ;  Wat- 

of  the  faijiily.  and  as  entitled  to  an-  kins  v.  Davis,  61  Tex.  414;  Schneider 

swer  for  it  and  himself  touching  his  v.  Bray,  59  Tex.  6G9 ;  Cameron  v.  Fay, 

right  to  be  there  and  remain.     If  the  55  Tex.  60;  Whittenberg  v.  Lloyd,  49 

true  title  to  the  property  is  in  him,  Tex.  642 ;  Pate  v.  Fertilizing  Co.,  54 

though  the  apparent  title  be  in  his  Ga.  515;  Friedlander  v.  Mahoney,  31 

wife,  he  cannot  be  driven  out  as  the  la.  315 ;  Knabb  v.  Drake,  23  Pa.  St 

result  of  contiacts  of  sale  or  mort-  489. 

gage  made  by  her  without  his  con-  2  Andrews     v.    Rowan,    28    How. 

sent,  and  with  persons  who  have  not  (N.   Y.)   128 ;    Wygant    v.   Smith,   2 

consiilted  him.     Indeed,  he  would  be  Lans.  185;  Scott   v.  Brigham,  27  Vt 

in  apable  of  effectually  consenting  to  561 ;  Edson  v.  Trask,  22  Vt.  18. 

i.  y  uile  or  mortgage  of  homestead  SMon-ig  y.  Tenueut,  56  Ga.  577. 


444  EESTEAINT    f)K    ALIENATION. 

farm  as  a  home  for  himself  and  his  family.  There  was  no 
evidence  that  he  had  such  intention  at  the  thue  of  the  sale. 
So  the  court  said :  "  We  do  not  think  that  the  money  .  .  . 
is  exempt  from  the  payment  of  Smith's  debts.  .  .  .  We 
think  the  intention  to  use  the  proceeds  in  procuring  another 
homestead  should  be  formed  at  or  before  the  time  of  sale, 
and  the  intention  should  be  to  procure  another  homestead 
immediately.  It  would  not  do  to  form  the  intention  two 
years  after  the  sale,  nor  would  a  present  intention  to  procure 
the  homestead  two  years  after  be  sufficient.  If  the  party  him- 
self supposed  that  he  could  get  along  without  a  homestead, 
the  law  would  not  protect  his  money  or  his  credits,  and  ex- 
empt them  from  the  payment  of  his  debts,  merely  because  it 
supposed  he  needed  a  homestead.  The  law  does  not,  in  ex- 
press terms,  in  any  case  exempt  money  or  credits,  merely 
because  they  are  proceeds  of  a  homestead.  They  are  ex- 
empted only  by  a  sort  of  equitable  fiction  drawn  from  the 
spirit  of  the  homestead  exemption  laws,  and  adopted  for  the 
purpose  of  enabling  persons  to  change  their  homesteads  when 
they  desire." ' 

If  the  sale  is  a  judicial  one,  to  enforce  a  lien,  any  surplus 
remaining  cannot  be  applied  to  satisfy  other  debts  not  se- 
cured by  lien.2  But  upon  the  death  of  both  husband  and 
wife  leaving  no  minor  children,  and  no  other  children  occu- 
pying the  premises,  the  late  homestead  may  be  sold  under 
execution  for  ordinary  debts." 

Since  a  homestead  cannot  be  seized  and  sold  under  execu- 
tion to  satisfy  debts  for  which  it  is  not  liable,  the  proceeds  of 
a  sale  of  a  debtor's  lands  will  be  presumed  not  to  embrace 
the  price  of  the  homestead.  His  claim  to  have  any  part  of 
them  exempt  as  such  will  be  denied  when  the  presumption 
has  not  been  removed.  Where  "  the  constitution  exempts 
the  homestead  from  attachment,  levy  and  sale  by  mesne 
process,  it  is  a  criminal  offense  for  the  sheriff  to  sell  such 
homestead,"  it  was  held,  "  whether  the  homestead  has  been 
set  apart  to  the  debtor  or  not."  Where  this  is  law,  the  sale 
of   a  homestead  is  illegal  and   void.      "This  being  so,  the 

1  Smith  V.  Gore,  23  Kas.  488;  S.  C,  sstrattou  v,  McCandliss,  32  Kas. 
33  Am.  Rep.  188.  513. 

2  Mitchell  V.  Milhoan,  11  Kas.  G17. 


PROCKEDS  nEr.n  for  general  purposes.  445 

money  in  the  hands  of  the  sheriff  can  in  no  sense  be  regarded 
as  its  representative." ' 

The  sale  of  exempt  real  or  personal  property  by  the  sher- 
iff is  a  nullity  when  the  owner  has  not  had  the  opportunity 
of  claiming.  And  it  has  been  held  that  money  recovered  of 
him  by  the  owner,  as  damages,  is  exempt  from  attachment  or 
execution.^ 

» Ros3  V.   Bradford,   28  S.  C.   71 ;  Andrews  v.  Rowan,  28  How.  (N.  Y.) 

Cantrell  v.   Fowler,  24    S.    C.   428;  126;  Hudson  v.  Plets,  11  Paige,  180; 

Myers  v.  Ham,  20  S.  C.  522 ;   Hos-  Stebbins  v.  Peeler,  29  Vt,  289 ;  Keyea 

ford  V.  Wynn,  22  S.  C.  309.  v.    Rines,   37  Vt.    263 ;    Mitchell    v. 

2  Cooney  V.  Cooney,  65  Barb.  524 ;  Milhoan,  11  Kas.  617.     See  Temple  v. 

Tlllotson  V.  Wolcott,  48  N.  Y.  190 ;  Scott,  3  Minn.  306. 


CHAPTER  XIY. 


RESTRAINT  OF  TESTAMENTARY  DISPOSITION. 


S  1.  How  Restrained. 

2.  Devise  is  Not  Alienation. 

3.  Authoiization  to  Sell. 

4.  Deed,  Will  and  Claim. 

5.  Testamentary  Disposition  Inhib- 

ited. 


§  6.  Wills  Consistent   with    Home- 
stead Rights. 

7.  Willing    the    Homestead    and 

More  —  Election  When  Neces- 
sary. 

8.  Spirit   of    Exemption    Laws  — 

Election. 


§  1.  How  Eestraiued. 

As  a  general  rule,  the  homestead  is  not  subject  to  the  last 
will  and  testament  of  the  owner.  The  restraint  is  mostly  by 
implication.  Few  statutes  expressly  forbid  the  disposition  of 
homestead  by  will,  but  nearly  all  contain  provisions  inconsist- 
ent with  that  power. 

(1)  Exemption  being  authorized  in  favor  of  the  family  as 
well  as  its  head,  it  would  be  defeated  by  devising  the  home 
so  as  to  prevent  its  enjoyment  by  the  beneficiaries. 

(2)  Present  as  well  as  future  benefits  being  conferred  on  the 
wife  and  children  of  the  householder,  they  may  be  deemed 
vested  rights  when  consented  to  by  the  act  of  dedication  on 
his  part,  so  that  he  cannot  divest  them  by  will. 

(3)  The  non-alienation  clause,  found  in  most  of  the  statutes, 
which  forbids  a  married  owner  from  selling  or  incumbering 
the  homestead  by  his  sole  act,  may  not  inhibit  testamentary 
disposition  by  him,  if  the  clause  is  to  be  confined  to  its  letter; 
but  it  usually  means  more  than  the  literal  terms  express. 
Read  ,with  the  other  provisions  usually  accompanying  it,  it 
may  mean  that  the  homestead  property  shall  not  be  passed 
from  the  married  owner  to  any  other  person  by  any  instru- 
ment made  by  him  alone.  This  would  not  affect  unmarried 
proprietors,  as  the  restraint  of  alienation  does  not. 

(4)  The  law  of  survivorship,  applied  to  married  homestead 
beneficiaries,  is  inconsistent  with  the  power  of  disposition  by 
wiU. 


DEVISE    IS    NOT   ALIENATIOX.  447 

(5)  AVills,  when  allowed  with  reference  to  homesteads,  must 
not  contravene  statutory  rights;  and  there  can  be  none  which 
cuts  off  the  right  of  election  between  the  interest  conferred  by 
testament  and  that  conferred  bv  statute,  Ar  will,  to  be  leffal, 
must  be  consistent  with  the  homestead  right,  A  will  which 
gives  the  homestead  beneficiary  precisely  what  the  law  gives 
would  not  be  invalid  should  it  give  more, 

(G)  The  spirit  of  the  homestead  legislation  is  against  any 
testamentary  disposition  of  exempt  realty  which  would  defeat 
the  purpose  and  policy  of  the  law. 

(7)  The  right  to  devise  remains  intact  when  not  expressly 
or  impliedly  inhibited;  and  all  laws  inhibiting  or  restraining 
it  should  be  strictly  construed. 

It  is  said  that  though  there  be  a  will,  the  decedent  dies  in- 
testate, so  far  as  his  homestead  is  concerned,  when  his  right 
,to  dispose  of  it  by  last  testament  is  inhibited.  His  heirs  take 
the  homestead,  though  they  be  non-resident,  and  it  has  been 
bequeathed  to  resident  legatees  so  far  as  the  form  is  con- 
cerned. That  is,  in  a  state  whose  constitution  exempts  the 
homestead  from  forced  sale  under  any  process,  and  provides 
that  this  exemption  shall  accrue  to  the  heirs  of  the  homestead- 
holder,  it  is  held  that  the  property  cannot  be  willed  away 
from  them.'  It  is  true  that  disposition  by  will  is  not  forced 
sale,  nor  any  sort  of  sale ;  but  the  constitutional  provision 
that  the  exemption  shall  accrue  or  inure  to  the  heirs  could  be 
defeated  if  the  owner  could  will  it  away  from  them.^ 

§  2.  Devise  is  Not  Alienation. 

The  common  restiaint  upon  alienation,  couched  in  such  lan- 
guage as  "  the  homestead  shall  not  be  alienated  without  the 
joint  consent  of  husband  and  wife  when  the  owner  is  mar- 
ried," is  not  literally  a  restraint  upon  testamentary  disposi- 
tion. Other  provisions  may  put  such  disposition  beyond  the 
power  of  the  owner,  such  as  those  vesting  homestead  right  in 
the  surviving  spouse  for  life,  in  the  minor  heirs  for  the  years 
of  their  minority,  or  those  creating  an  estate  of  homestead 
with  such  characteristics  as  render  it  inconsistent  with  the 
owner's  right  of  devise.     But  the  usual  non-alienation  clause, 

1  Scull  V.  Beati., ,  27  Fla.  428 ;  9  So.  4.        2  pia.  Const.  18GS,  art  9,  §§  1,  3. 


448  EESTKAINT    OF    TESTAMENTARY    DISPOSITION. 

standing  alone,  cannot  be  extended  to  affect  the  right  oKwill- 
ing  the  homestead,  unless  dt^vise  is  a  species  of  alienation. 

Such  a  non-alienrtion  clause^  was  construed  as  inhibiting 
testamentary  dis])osition  of  the  homestead  by  the  head  of  a 
family  having  a  wife  and  children,  while,  at  the  same  time,  it 
was  held  that  no  new  right  of  property,  or  tenure,  is  conferred 
upon  the  widow  as  to  either  heirs  or  creditors.  Without  the 
exemption  provision,  heirs  are  not  protected  from  creditors 
though  the  widow's  dower  is  inviolable.  AYith  the  provis- 
ion, not  only  heirs,  but  the  widow  too,  are  protected,  while 
her  dower  right  remains  as  before.  Hence  it  was  concluded 
that  the  rights  of  the  widow  and  children  of  a  homestead- 
holder  are  not  controlled  or  modified  by  his  will  in  respect  to 
the  homestead.  It  will  be  noted  that  the  court  did  not  rely 
wholly  on  the  non-alienation  clause,  but  drew  upon  other  pro- 
visions, to  prove  that  the  homestead  was  not  subject  to  devise.^ 

Alienation  is  Tvell  illustrated  by  a  sale  —  the  property  pass- 
ing from  the  seller  to  the  buyer.  The  former  alienates  —  the 
latter  receives.  Properly  it  cannot  be  said  that  a  thing  is 
alienated  to  the  buyer :  it  is  alienated  from  the  seller. 

When  an  owner  dies  intestate,  his  property  descends  to  his 
heir;  but,  as  the  heir  is  but  a  continuation  of  the  ancestor, 
there  is  no  alienation  of  the  property.  If  the  owner  dies  tes- 
tate, his  legatee  succeeds  to  the  property,  but  the  testator  can- 
not be  said  to  have  alienated  it.  Certainly,  there  was  no  such 
effect  produced  immediately  upon  the  act  of  making  his  will. 
He  w^as  not  then  divested  of  any  property  right  or  interest. 
The  devisee  then  had  no  right  or  title  vested  in  himself.  The 
testator  still  retained  title,  possession  and  control.  He  could 
modify  or  revoke  his  will  at  pleasure.  He  could  make  a  new 
one  with  disposition  of  his  property  totally  different  from 
that  first  designed  and  expressed. 

Not  only  the  testator,  but  the  state,  is  free  to  change  the 
conditions  of  the  will.  The  testament  is  as  though  it  had 
never  been  made,  so  far  as  concerns  the  power  of  the  state  to 
control  the  making  of  devises.  There  is  nothing  vested  —  no 
right  fixed  which  the  state  would  impair  by  limiting,  or  even 
wholly  denying,  the  will-making  prerogative.    The  law  author- 

1  Const,  of  Florida,  art  IX.  225;  Wilson  v,  Fridenbiirg,   19  Fla. 

2  Brokaw  v.  McDougall,  20  Fla,  213,    461. 


DEVISE    18   NOT   ALIENATION.  449 

izing,  regulating  or  forbidding  testaments,  or  affecting  rights 
of  inheritance  or  legacy,  may  be  changed  at  the  will  of  the 
legislature  so  as  to  bear  upon  all  existing  wills  while  the  tes- 
tator lives,  up  to  the  time  the  property  willed  becomes  vested 
in  the  devisee  by  the  death  of  the  testator.  It  is  because  the 
bequest  is  not  to  take  effect  till  the  death  of  the  testator,  and 
no  right  is  vested  till  that  event,  that  the  rules  of  devise  and 
descent  are  subject  to  change  meanwhile.^ 

A  will  does  not  divest  the  owner  of  the  property  willed,  for 
the  power  of  alienation  still  remains  in  him  to  the  day  of  his 
death.  It  transfers  nothing  to  the  devisee  which  he  can  alien- 
ate. The  instrument  is  nothing  more  than  the  owner's  writ- 
ten expression  of  intention,  of  which  the  law  takes  no  account 
till  he  dies  with  his  intention  unaltered.  It  is  what  the 
owner  wishes  at  the  time  he  dies,  evidenced  by  written  ex- 
pression duly  executed,  that  the  law  respects.  Then  there  is 
transfer  from  the  testator  to  the  devisee :  but  is  that  alien- 
iition? 

Answer:  "A  will  is  never  a  conveyance.  A  conveyance 
operates  in  the  life-time  of  the  grantor,  while  a  will  does  not 
operate  until  after  the  death  of  the  maker.  Of  course  death 
transfers  all  property,  and  a  will  says  where  it  shall  go ;  but 
this  does  not  render  a  will  'a  conveyance.'  .  .  .  It  is 
the  death  that  transfers  the  property."  ^ 

"  When  death  occurs,  the  title  to  the  property  of  the  person 
dying  must  be  transferred  to  some  person.  It  cannot  remain 
in  the  deceased,  and  the  will  simply  designates  where  it  shall 
go.  The  title  may  go  to  one  or  more  of  the  persons  occupy- 
ing the  property  as  a  homestead,  or  it  may  go  to  some  other 
person."  ^ 

"  It  is  not  the  will  alone,  however,  that  determines  where 
the  property  shall  go,  for  the  will  operating  alone  would  be 
powerless.  It  is  the  will,  and  death,  and  the  statutes,  oper- 
ating together,  that  determine  "where  the  property  shall  go. 
Indeed,  it  is  the  statutes  which  give  force  and  efficacy  to  all. 
A  will,  which  is  never  operative  or  in  force  during  the  life- 

» Cooley's  Const  Lim.  (Angell's  ed.)  Walton,  12  Ind.  689 ;  Noel  v.  Ewing. 

447 ;  Henson  v.  Moore,   104  111.  403,  9  Ind.  37. 

409;  Sturgis  v.  Ewing,   18  III.   176;  '^Comstock  v.  Adams,  23  Kas.  524. 

Strong  V.  Clem,  12  Ind.  37 ;  Logan  v.  »  Martindale  v.  Smith,  31  Kas.  27a 
29 


450  KESTBAINT   OF    TESTAMENTARY    DISPOSITION. 

time  of  the  testator,  is  in  this  respect  wholly  unlike  a  deed  or 
contract,  which  must  have  force  and  effect  as  soon  as  it  is  ex- 
ecuted. .  .  .  It  is  true  that  a  deed  or  contract  may  trans- 
fer property  upon  a  contingency,  or  upon  a  condition  pre- 
cedent or  subsequent,  or  to  be  used  or  enjoyed  only  at  or  after 
some  future  time;  but  still,  when  the  deed  or  contract  is  exe- 
cuted, rights  become  vested.     .     .     ."  ^ 

Alienation  is  generally  understood  to  be  conveyance  of  title 
from  one  living  party  to  another.  It  is  defined  as  "  the  act 
by  which  the  title  to  an  estate  is  voluntarily  resigned  by  one 
person  and  accepted  by  another  in  the  forms  prescribed  by 
law."  2 

When  a  mortgage  is  not  a  sale  subject  to  conditions  but  is  a 
hypothecation  to  secure  debt,  it  is  not  an  alienation.' 

§  3.  Authorization  to  Sell. 

The  general  right  of  a  property  owner  to  dispose  of  his 
property  by  will,  when  it  is  restrained  by  statute  or  limited 
or  denied,  is  affected  so  far,  and  so  far  only,  as  the  legislator 
designed  —  the  statute  being  strictly  construed.  But  if  the 
right  be  denied,  with  exceptions  made  in  a  proviso,  those  ex- 
cei)tions  must  be  construed  in  relation  to  the  statutory  inhibi- 
tion, while  the  inhibition  itself  must  be  construed  in  relation 
to  the  common-law  right. 

It  is  ordained,  by  constitution,  "  that  the  general  assembly 
shall  enact  such  laws  as  will  exempt  from  attachment  and 
sale,  under  any  mesne  or  final  process  issued  from  any  court, 
to  the  head  of  any  family  residing  in  this  state,  a  homestead 
in  lands,  whether  held  in  fee  or  an}^  lesser  estate;  .  .  . 
and  every  head  of  a  family  residing  in  this  state,  whether  en- 
titled to  a  homestead  exemption  in  lands  or  not,  personal 
property  not  to  exceed  in  value  five  hundred  dollars.    .    .    ."  * 

1  Vining  v.  Willis,  40  Kas.  609,  612.  2Bouv.  Law  Diet 

Valentine,  J.,  for  the  court,  in  exposi-  ^  Warren  v.  Raymond,  17  S.  C  178 ; 

tion  of   Constitution  of  Kansas,  art.  Smith  v.  Grant,  15  S.  C  150;  Simons 

15,§  9:  "A  homestead    .     .    .    shall  v.  Bryce,  10  S.  C.  354. 

not  be  alienated  without  the  joint  *  Const     of    South     Carolina,     as 

consent  of  husband  and  wife,  when  amended  in  1880.    See  art  I,  §  20; 

that  relation  exists."     Held,  that  tes-  art.  II,  §  33. 
tamentary  disposition  is  not  aliena- 
tion. 


AUTHORIZATION   TO    SELL.  451 

Pursuant  to  this  requisition,  the  general  assembly  enacted : 
"  No  waiver  of  ,the  right  of  homestead,  however  solemn,  made 
by  the  head  of  the  family,  at  any  time  prior  to  the  assign- 
ment of  homestead,  shall  defeat  the  homestead  provided  for 
by  this  chapter :  provided^  however,  that  no  right  of  home- 
stead shall  exist  or  be  allowed  in  any  property,  real  or  per- 
sonal, aliened  or  mortgaged,  by  any  person  or  persons  who«n- 
soever,  as  against  the  title  or  claim  of  the  alienee  or  mort- 
gagee, or  his,  her  or  their  heirs  or  assigns." ' 

Treating  this  as  a  complete  inhibition  of  all  disposition  of 
such  property  by  the  owner  (except  the  methods  mentioned 
in  the  proviso),^  a  rendering  which  seems  broader  than  the 
statute, —  the  court,  in  construing  the  statute,  completely  re- 
versed the  question  hereinbefore  discussed  relative  to  the 
alienation  and  the  testamentary  disposition  of  a  homestead. 
Instead  of  asking  whether  prohibiting  alienation  carries  with 
it  a  prohibition  of  devise,  it  asked  whether  authorization  to 
sell  or  mortgage  carries  with  it  authorization  to  devise.  This 
was  right,  conceding  that  the  statute  prohibited  all  disposi- 
tion except  by  sale  or  mortgage. 

The  court  said,  in  the  case  in  which  the  above  constitutional 
and  statutory  provisions  were  expounded,^  of  one  who  had 
willed  his  property  to  be  sold  to  pay  his  creditors,  that  he 
might  have  claimed  exemption  and  had  the  property  assigned 
as  his  homestead,  but,  not  having  done  so,  his  widow  had  that 
right,  notwithstanding  the  will;  that  he  might  have  pre- 
cluded her  right  by  alienating  or  mortgaging  it ; '  and  that  the 
question  presented  by  the  case  was  w^iether  his  testamentary 
disposition  was  such  an  alienation  in  the  sense  of  the  act  as  to 
exclude  her  right  to  claim  the  exemption  of  the  property  after 
his  death. 

On  this  question,  the  court  said : 

'•  The  provisions  of  the  homestead  law,  in  the  circumstances 
authorizing  the  exemption,  are  general  in  their  character, 
specifying  the  cases  in  which  the  exemption  is  excluded,  viz., 
alienation  and  mortgage  by  the  debtor.     These  are  clearly 

1  Gen.  Stat  South  Carolina,  §§  1997,        ^Citing  Homestead  Ass'n  v.  Ens- 

1998.  low,  7  S.  C.  19 ;  Smith  v.  Mallone,  10 

2Hendrix  v.  Seaborn,  25  S.  C.  481,  S.  C.  40. 

4^Jh 


452  RESTRAINT   OF    TESTAMENTARY    DISI'OSHK  iN. 

exceptions  to  a  general  rule,  and  therefore  are  not  to  be  ex- 
tended or  enlarged  by  implication.  It  is  to  be  assumed  that, 
if  other  exceptions,  such  as  a  legacy  or  devise,  had  been  in- 
tended, they  would  have  been  added  to  the  list." 

By  reference  to  the  section  under  eonstruction,  it  will  be 
seen  that  the  exceptions  are  not  to  the  exemption  but  to 
waiver  prior  to  assignment.  Before  the  owner's  residence 
has  been  assigned  as  a  homestead  exempt  from  forced  sale,  he 
cannot  waive  his  right  to  have  it  assigned  but  he  may  sell  the 
property  or  may  mortgage  it  without  being  hindered  by  this 
inhibition  of  the  right  to  waive  the  privilege  of  having  it  as- 
signed as  a  homestead.  The  inhibition  of  disposition  by  will 
when  the  property  has  not  been  assigned  may  be  inferred, 
however,  from  another  provision  of  the  statute  which  now 
will  be  considered. 

After  providing  how  the  family  residence  may  be  claimed 
and  assigned  as  exempt,  the  legislature  enacted :  "  If  the  hus- 
band be  dead,  the  wife  or  children;  if  the  father  and  mother 
be  dead,  the  children  living  on  the  homestead  .  .  .  shall 
be  entitled  to  have  the  family  homestead  [residence]  exempted 
in  like  manner  as  if  the  husband  or  parents  were  living.  .  .  ."  ^ 
That  is  to  say,  the  head  of  the  family  may  have  his  residence 
clothed  with  the  homestead  character,  if  he  choose ;  or,  should 
he  not,  his  widow  may ;  or,  should  neither  do  so,  the  children 
may,  after  the  death  of  the  parents.  This  provision  seems  to 
imply  that  the  father  and  husband  cannot  defeat  this  right  of 
the  widow  and  children  by  any  testamentary  disposition  that 
would  put  the  residence  out  of  the  family.  This  implication 
seems  to  accord  with  the  spirit  of  the  statute. 

The  situation  is  peculiar.  The  state  is  interested  in  the 
preservation  of  homes  and  may  pass  laws  tending  to  keep 
them  in  the  families  occupying  them,  if  the  property  right  of 
the  owners  is  not  arbitrarily  taken  away  and  given  to  others. 
The  right  to  have  the  family  residence  assigned  as  exempt 
with  the  corresponding  onerous  conditions  is  left  optional  with 
the  owner.  But,  prior  to  his  election,  restraint  of  testament- 
ary disposition  is  foisted  upon  him,  according  to  the  decision 
under  review  —  and  there  is  no  design  now  to  question  the 
constitutionality  of  the  restraint.     Not  only  is  the  restraint 

1  Gen.  Stat  So.  Car.,  §  1997. 


DKED,    WIl.L    AND    CLAIM.  453 

prior  to  his  election  to  have  homestead  assigned,  but  contin- 
gent rights  of  wife  and  children  are  created  prior  to  home- 
stead designation.  No  doubt  the  state  may  regulate  will- 
making,  or  forbid  it,  but  a  law  to  that  effect  should  have 
general  bearing.  This  point,  however,  will  not  now  be  dis- 
cussed. It  will  be  assumed  that  the  section  under  considera- 
tion gives  the  wife  and  children  the  right  to  have  homestead 
assigned  in  the  family  residence  if  the  husband-father  has  died 
without  exercising  his  right  to  have  it  done,  and  that  he  can- 
not defeat  their  right  by  devising  it  beyond  their  reach. 

It  has  been  suggested  that  the  father-husband,  as  to  his 
right  of  homestead,  is  like  the  first  taker  in  a  fee  conditional 
after  issue  born.  He  may  alien  by  deed  but  not  by  devise. 
The  transfer  must  take  place  in  his  life-time  or  descend  to  the 
heirs  of  Yumtation  per  formam  cloni.  And  the  suggestion  was 
supported  by  reference  to  alienation  or  forfeiture  by  a  joint- 
tenant  so  as  to  defeat  the  jus  accrescendi,  who  cannot,  on 
the  other  hand,  devise  the  property,  for  the  reason  that  the 
devise  cannot  take  effect  till  his  death  when  it  goes  to  the 
survivor.^ 

The  illustration  is  sufficiently  apt,  if  inhibition  of  the  hus- 
band's right  to  devise  be  first  established  while  the  right  to 
sell  remains ;  but,  if  used  in  argument  to  prove  the  inhibition, 
it  would  be  the  assumption  of  the  proposition  sought  to  be 
established. 

The  testator  (in  the  case  mentioned)  -  had  never  exercised 
his  rio-ht  to  have  his  residence  assio'ned  as  a  homestead,  and 
might  have  paid  his  debts  with  it  by  selling  it  while  he  lived. 
Not  doing  so,  his  wife  succeeded  to  the  right  of  having  home- 
stead assigned,  if  the  will  to  have  it  go  to  pay  debts  was  nu- 
gatory. It  does  not  appear  that  the  property  was  exempt 
from  forced  sale  prior  to  its  acquisition  of  the  homestead  char- 
acter at  the  instigation  of  the  husband,  or  the  surviving  wife, 
or  of  their  orphan  children. 

§  4.  Deed,  Will  and  Claim. 

^mith  and  wife  deeded  their  homestead  to  their  sons,  sub- 
ject to  a  deed  previously  made  by  him  to  her  as  trustee  for 

1  Jones  V.  Postell,  Harper  (S.  C),  Hendrix  v.  Seaborn,  25  S.  C.  481, 
92 ;  Burnett  v.  Burnett,  17  S.  C.  552 ;    4S6. 

-  Hendrix  v.  Seaborn,  supra. 


454  KKSTRAINT    OK    TP:STAMENTARY    DISPOSITION. 

the  sons'  benefit.  He  willed  the  same  property  to  them,  sub- 
ject to  the  deed  of  trust  he  had  given  to  her.  She  accepted 
the  executorship  under  the  will;  but,  afterwards,  upon  her  re- 
marriage, claimed  homestead  in  the  estate  which  consisted  of 
other  realty  besides  the  homestead  that  had  been  both  deeded 
and  willed  to  the  sons. 

What  was  the  legal  effect  of  the  two  instruments — the 
deeds  to  the  sons  and  to  the  wife?  asks  the  court  —  and  an- 
swers: "Evidently  they  form  part  and  parcel  of  one  transac- 
tion and  must  be  construed  together  and  also  in  connection 
with  Smith's  will  .  .  .  These  papers  are  drawn  in  the 
form  of  deeds,  but  in  many  of  their  features  they  certainly 
partake  very  strongly  of  the  nature  and  character  of  testa- 
mentary instruments.  .  .  .  And  looking  at  these  instru- 
ments in  the  light  of  all  the  facts  of  this  case  exhibited  by  the 
record,  we  would,  we  think,  be  justified,  if  necessary  to  do  so, 
in  holding  them  to  be  deeds  of  apportionment  made  in  con- 
templation of  death,  which  can  only  be  given  the  effect  in. 
tended,  by  the  parties,  by  treating  them  as  testamentary 
instruments.  If  so,  then  unquestionably  there  was  a  home- 
stead belonging  to  Smith  at  his  death.  And  the  fact,  that  his 
wife  may  have  consented  to  the  disposition  of  it  by  these  tes- 
tamentary instruments,  will  not  authorize  her  to  claim  for 
herself  and  child  to  whom  the  homestead  has  thus  been  con- 
veyed, the  value  of  a  homestead  out  of  other  property  belong- 
ing to  the  estate." 

Considered  as  absolute  conveyances,  they  vested  the  home- 
stead in  the  sons :  so  the  widow  could  not  have  another,  the 
court  held.  But  if  Smith  was  insolvent  when  he  conveyed  to 
them ;  "  if  the  effect  is  to  hinder,  delaj^  or  defeat  the  claims  of 
creditors,  as  it  [the  conveyance]  was  voluntary,  it  is  certainly 
fraudulent  and  void  as  to  them.  .  .  .  Their  right  .  .  . 
is  superior  to  that  of  any  one  claiming  under  a  voluntary 
conveyance."  And  the  court  denied  that  other  property  of 
the  estate  could  be  withdrawn  from  liability  to  creditors  by 
being  set  apart  as  a  homestead  to  the  widow  after  the  pre- 
viously-existing one  had  been  voluntarily  conveyed  in  fraud 
of  their  rights.  "  The  homestead  exemption  cannot  be  dis- 
torted in  this  way,  so  as  to  be  made  an  engine  of  fraud  upon 
the  rights  of  creditors."     The  claim  for  a  second  homestead 


DEED,   WILL    AND    CLAIM.  455 

out  of  non-cxem])t  lands,  in  lieu  of  the  first  wliich  had  been 
voluntarily  conveyed,  was  denied.' 

If  the  sons  took  by  the  joint  deed  of  the  husband  and  wife, 
the  subsequent  will  of  Smith  would  seem  superfluous  as- to  the 
homestead.  If  that  deed  be  considered  as  a  testament,  the 
fact  of  her  signing  it  would  not  make  it  operative  as  her  will 
while  she  yet  survived;  it  w^ould  be  his  only  — and  subject  to 
the  objection  that  he  could  not  will  the  homestead  away  from 
her.  The  right  view  seems  to  be  that  it  was  a  deed  in  which 
she  joined  and  thus  cut  off  all  her  homestead  rights  in  that 
property  and  precluded  herself  from  claiming  its  equivalent 
in  other  property  at  the  expense  of  creditors. 

A  testator,  wdio  had  never  had  any  homestead  set  apart  to 
him,  Avilled  his  property  to  his  wife  for  life  and  in  trust  for 
his  minor  children.  She  had  the  homestead  assigned  to  her 
and  the  children,  notwithstanding  the  will,  and  against  the 
reinonstrance  of  a  judgment  creditor  of  the  deceased  husband. 
This  was  sustained  by  the  court.^  It  is  said,  in  the  re])orted 
opinion,  that  the  property  set  apart  "  did  not  vest  by  the  death 
of  the  husband  in  any  one,  but  by  his  will  was  transmitted  to 
the  wife  and  minor  children  for  w^hose  benefit  the  exemption 
is  sought." 

If  the  husband  could  not  have  had  a  homestead  set  apart  to 
himself,  after  the  judgment  lien  had  attached,  so  as  to  aflPect 
the  creditor's  right,  could  the  widow  dislodge  the  lien  by  any 
application  of  hers,  or  by  any  action  upon  it?  Unless  exemp- 
tion is  made  to  precede  the  setting  apart  —  to  attach  by  mere 
occupancy  —  the  creditor's  right  w^as  complete  upon  judg- 
ment. The  point  of  the  decision  is  that  the  widows  had  the 
right  of  having  the  homestead  assigned  when  the  decedent 
had  failed  to  do  so,  which  seems  indisputable,  as  she  was  the 
head  of  a  family  and  the  occupant  of  the  premises,  and  the 
property  had  been  transmitted  to  her  for  life  in  trust  for 
the  children,  by  will,  without  possibly  cutting  her  off  from 
any  of  her  statutory  rights.^  And  an  estate  not  thus  willed, 
but  carved  out  of  the  husband's  separate  property,  is  exempt 

'  Woodall  V.  Rudd,  41  Tex.  375.  Akin  v.  Geiger,  53  Ga.  407 ;   Minis  v. 

'  Bridwell  v.  Bridwell,  76  Ga.  627.     Ross.  42  Ga.  121 ;  Gunn  v.  Miller,  43 
'  See  Hodo  v.  Johnson,  40  Ga.  440 ;     Ga.  377 :  Georgia  Code.  §  2002. 


456  RESTRAINT   OF   TESTAMENTARY    DISPOSITION. 

as  to  creditors;  but  adult  heirs  should  not  be  prejudiced  con- 
cernins:  their  riohts.' 

A  testator  willed  land  to  his  widow  and  children.  They 
occuj3ied  it  as  their  home ;  and  the  widow's  portion,  being  not 
more  than  the  law  allows  for  a  homestead,  she  had  it  laid  off 
as  such.  She  held  this,  not  as  the  technical  "  widow's  home- 
stead," assigned  to  her  from  her  late  husband's  estate,  but  as 
a  homestead  in  her  own  property,  devised  to  her  and  held  in 
fee.  Had  it  been  the  former,  it  could  have  been  sold  by  her 
creditors  subject  to  her  life  occupancy,  and  the  occupancy  of 
the  decedent's  children  during  their  minority,  for  the  debts 
she  had  contracted  subsequent  to  its  acquisition;  but,  being 
the  latter,  it  could  not  be  sold  by  creditors.  As  the  head  of 
a  family,  a  woman  has  the  same  rights  of  homestead  as  a  man; 
when  she  owns  property  dedicated  as  a  homestead,  it  is  the 
same  as  if  he  owned  property  so  dedicated. 

In  the  instance  above  stated,  if  only  a  widow's  homestead 
from  the  decedent's  estate  had  been  assigned  her  as  a  widow, 
the  legal  title  would  have  been  in  the  heirs ;  but,  as  the  title 
was  in  her  by  virtue  of  the  will,  she  had  the  right  of  aliena- 
tion under  the  laws  of  her  state,  and  this  right  is  held  incon- 
sistent there  with  the  right  of  creditors  to  sell  it  for  her  debts ; 
for  the  court  considered  her  in  the  precise  attitude  of  a  pur- 
chaser of  a  homestead  who  subsequently  has  contracted  debts 
from  which  it  is  exempt.- 

§  5.  Testamentary  Disposition  Inhibited. 

The  disposal  of  the  homestead  by  testament  may  be  infer- 
entially  forbidden  by  provisions  inconsistent  with  it.  An  en- 
actment that  it  shall  descend  to  the  surviving  spouse  is  such  a 
provision.  The  following  section  of  a  statute  is  illustrative : 
"  The  surviving  husband  or  wife  shall  be  entitled  to  hold  for 
the  term  of  his  or  her  natural  life,  free  from  all  claims  on  ac- 
count of  the  debts  of  the  deceased,  the  homestead  of  such  de- 
ceased, as  such  homestead  is  or  may  be  defined  in  the  statutes 
relating  to  homestead  exemptions."  ' 

•  Lee  V.  Hale,  77  Ga.  1 ;  Kemp  v.  Ky.  333 ;    Gen.  Stat  of  Ky.  433-5 ; 

Kemp,  42  Ga.  523 ;  Griffin  v.  Griffin,  Lear  v.  Totten,  14  Bush.  104 ;  Brooks 

42  Ga.  523;  Roff  v.  Jonnson,  40  Ga.  v.  Collins,  11  Bush.  622.     See  Gregory 

555;  Hodo  v.  Johnson,  40  Ga.  440.  v.  Oats  (Ky.),  18  S.  W.  231. 

^AUensworth    v.    Kimbrough,    79        3  Laws  of  Minn.   1876,  ch.  37,  §  2. 


TESTAMENTARY    DISPOSITION    INIIIIilTED.  457 

The  question  was  raised,  whether  the  owner  could  divest 
the  interest  of  the  survivor  by  will;  and  it  was  answered  in 
the  negative.  The  provision  in  favor  of  the  survivor  was 
treated  as  controlling  the  law  empowering  testators  to  devise 
their  interests  in  lands.  The  spirit  of  the  provision  was 
deemed  irreconcilable  with  |)ower  in  the  owner  to  will  the 
homestead  away  from  the  survivor.  The  protection  of  the 
homestead  from  devise  was  likened  to  the  preservation  of 
dower  from  any  attempt  of  the  husband  to  defeat  it  by  his 
last  testament.  So,  though  there  was  no  express  denial  of 
the  power  to  will  a  homestead  in  the  act  itself,  the  court 
found  the  power  denied  by  implication,  from  provisions  in- 
consistent therewith.^ 

Like  provisions  have  been  construed  in  the  same  way  —  the 
right  of  homestead  disposition  by  will  being  denied  upon  sim- 
ilar reasoning.^ 

A  statute  which  provides  that  the  homestead,  at  the  death 
of  its  owner,  "  shall  pass  and  vest  in  "  his  widow  and  children, 
but  all  his  "  right,  title  and  interest "  "  in  the  premises,  except 
the  estate  of  homestead  thus  continued,  shall  be  subject  to 
the  laws  relating  to  devise,  descent,"  eto.,^  puts  it  beyond  the 
power  of  the  testator  to  deprive  his  widow  of  her  life  estate, 
and  the  children  of  their  estate  for  years,  in  the  premises. 

This  section  has  been  construed  as  excepting  homesteads 
from  laws  relating  to  devises,  so  that  it  inhibits  the  husband, 
when  willing  his  own  property,  from  so  devising  as  to  put  his 
widow  to  election  between  a  bequest  and  her  homestead.  It 
is  said  to  be  as  much  beyond  his  power  to  devise  the  home- 
stead as  to  alienate  it  by  his  sole  deed.'* 

Where  the  homestead  of  "  any  resident  of  the  state  "  is  ex- 
empt not  only  from  his  debts  while  he  lives  but  "  from  admin- 
istration "  after  his  death,*  it  is  held  not  disposable  by  will. 

1  Holbrook  v.  Wightman,  31  Minn.  v.  Davis,  86  Mo.  440 ;  Gragg  v.  Gragg, 

168;  Eaton  v.  Robbins,  29  Minn.  327.  65  Mo.  343;  Richardson  v.  Richard- 

2Meech  v.  Meech,  37  Vt.  AU.  4IS;  son,  49  Mo.  29;  Rose  v.  McHose.  26 

Succession   of  Hunter,  13  La.  Ann.  Mo.  590.     Compare  Gant  v.  Henly, 

257 ;    Runnels  v.   Runnels,   27    Tex.  64  Mo.  162.     See  Schneider  v.  HofiF- 

51.5,  519.  man,  9  Mo.  App.  280,  in  exposition  of 

3  Rev.    Stat,     of    Missouri     (1889),  Mo.  Stat,  of  1865. 

§  5439 ;  Rev.  Stat.  (1879),  §  2693.  »  Code  of  Alabama  (1886),  §§  2507, 

4  Rockliey  v.  Rockhey,  97  Mo.  76 ;     2543. 
Kaes  V.  Gross,  92  Mo.  647 ;  Davidson 


4r)S  KESTliAINT    OF    TESTAMENTARY    DISPOSITION, 

The  court,  in  exposition,  said  that  it  is  not  merely  the  home- 
stead of  one  dying  intestate  that  is  exempt,  but  the  homestead 
of  "  any  resident "  —  thus  including  both  testate  and  intestate 
decedents.  It  is  declared  expressly  to  be  "  exempted  from 
administration."  The  effect  is  "  to  take  the  homestead  out  of 
the  operation  of  the  will  during  the  life  of  the  widow  and  the 
minority  of  the  children,  for  the  purpose  and  to  the  extent 
declared  by  the  statute,"  the  court  said.^ 

The  rights  of  widows  and  minor  children  to  homestead  can- 
not be  defeated  by  will,  even  where  the  owner  may  sell  all 
his  property  in  his  life-time.^  It  has  been  held  that  the  rights 
of  minor  children  to  homestead  cannot  be  defeated  by  the  last 
testament  of  their  father,  even  if  he  has  been  divorced  from 
his  Avife.  If  his  children  have  ceased  to  live  with  him,  the 
rule  is  the  same.  Though  they  share  with  their  mother  a 
homestead  which  she  has  in  her  own  right,  the  rule  still  holds. 
While  he  lives,  he  has  the  enjoyment  of  the  homestead  he  oc- 
cupies, though  the  divorce  was  for  his  fault.  It  is  even  held 
that  a  divorced  wife,  as  guardian  of  her  minor  children,  may 
bring  action  for  the  setting  apart  of  her  former  husband's 
homestead,  for  their  benefit,* 

After  divorce  and  a  division  of  property  between  spouses, 
the  husband,  having  minor  children,  continued  to  occupy  the 
homestead  as  the  head  of  a  family,  though  the  court  had  given 
the  wife  charge  of  the  children;  and  he  was  entitled  to  claim 
exemption.  His  homestead  right  could  not  be  willed  away 
from  those  children,  for  it  descended  to  them  at  his  death, 
notwithstanding  the  fact  that  they  were  under  the  care  of 
their  mother,  since  the  constitution*  provided  that  on  the 
death  of  the  husband  or  wife,  or  both,  the  homestead  shall  de- 
scend as  other  real  property  of  the  deceased,  but  shall  not  be 
partitioned  among  the  heirs  while  the  guardian  of  the  minors 
is  allowed  to  occupy  it  by  order  of  court.  As  their  guardian, 
the  divorced  wife  may  apply  to  have  the  homestead  of  their 
deceased  father  set  apart  for  their  benefit.  They  are  not  to 
lose  this  right  on  account  of  the  divorce  decree  giving  the 
wife  life  tenure  in  certain  real  estate,  on  division  of  the  prop- 

1  Bell  V.  Bell,  84  Ala.  64 ;  Jarrell  v.  '-J  Brettun  v.  Fox,  100  Mass.  234. 

Payne,  75  Ala.  577 ;  Coffee  v.  Joseph,  ^Hall   v.   Fields,  81    Tex.    553;    IT 

74  Ala,  271.     See  Hubbard  v.  Russell,  S.  W.  82. 

73  Ala.  578.  i  Const,  of  Tex.,  art.  16,  ^  53. 


TEbTAMENTAKY    DISl'i  isi  lIoX    IMI I  i;ri  h;  >. 


45S> 


erty  between  their  divorced  parents.'  She,  however,  could 
not  successfully  claim  any  right  to  his  homestead,  in  her  own 
behalf.^  The  homestead  was  his,  not  hers,  though  the  children 
were  not  with  him;  and  she,  as  a  divorced  wife,  had  no  right 
in  it,  and  no  inheritance  from  it,  whosever  may  have  been  the 
fault  which  led  to  the  divorce.' 

As  the  withholding  of  homesteads  from  administration  is 
common,^  the  principle  above  enunciated,  or  the  conclusion 
from  the  fact,  would  seem  to  be  of  general  application. 

both  of  their  right  to  the  society  and 
protection  of  the  father. 
They  had  no  homestead  rights,  as 
such,  in  the  home  of  either  their 
father  or  their  mother.  At  any  time 
before  his  death  the  father  may  have 
abandoned  or  sold  liis  homestead 
without  affecting  the  legal  rights  of 
his  minor  children,  and  so  the 
mother  could  sell  her  life  interest  in 
the  eighty  acres  set  apart  to  her  and 
the  homestead  which  she  had 
bought.  ...  It  cannot  be  said 
that,  living  with  their  mother  on  a 
homestead  belonging  to  her,  the 
children  have  a  homestead,  and  con- 
sequently cannot  look  to  their 
father's  estate  for  one,  when  at  any 
time  the  mother  may  sell.  Had  she 
died  prior  to  her  husband,  and  her 
home  had  been  set  apart  to  the  chil- 
dren, then  it  might  be  urged  with 
propriety  that  they  could  not  claim 
two  homesteads.  But  their  father 
being  dead,  they  will  not  be  required 
to  depend  on  the  contingency  of 
homestead  rights  in  their  mother's 
estate."    Garrett,  J. 

4  Yoe  V.  Hanvey,  25  S.  C.  94 ;  Es- 
tate of  James,  23  Cal.  417 ;  Estate  of 
Tompkins,  12  Cal.  114;  Plate  v. 
Koehler,  8  Mo.  App.  o96;  Carter  v. 
Randolph,  47  Tex.  379;  O'Docherty 
V.  McGloin,  25  Tex.  72 ;  Sossaman  v. 
Powell,  21  Tex.  665 ;  Bates  v.  Bates, 
97  Mass.  392 ;  Doane  v.  Doane,  33  Vt 
650. 


1  Hall  V.  Fields,  17  S.  W.  (Tex.)  82. 

2/6.;  Duke  v.  Reed,  64  Tex.  713; 
Trawick  v.  Harris,  8  Tex.  312 ;  Earle 
V.  Earle,  9  Tex.  630 :  Sears  v.  Sears, 
45  Tex.  557. 

3Zapp  V.  Strohmeyer,  75  Tex.  638, 
In  Hall  v.  Fields,  supra,  the  court 
said :  "  From  the  relationship  of 
minor  cliildren  to  their  father,  we 
can  have  no  doubt,  under  our  present 
constitution  and  laws,  that  it  is  not 
necessary  that  the  children  should 
reside  with  their  father  at  the  time 
of  his  death  to  entitle  them  to  a 
right  in  his  homestead.  It  is  not  so 
required  by  the  constitution.  Const., 
art.  16.  §  52.  By  the  Revised  Statutes 
(art.  1993),  the  exempt  property  must 
be  set  apart '  for  the  use  and  benefit 
of  the  widow  and  minor  children, 
and  unmarried  daughters  remaining 
with  the  family  of  the  deceased.' 
Adult  children,  including  unmarried 
daughters  who  do  not  remain  with 
the  family  of  the  deceased,  do  not 
share  in  the  exemptions;  but  the 
widow  and  minor  children  do,  al- 
though they  may  not  be  with  the  de- 
ceased. That  the  children  were 
awarded  by  the  court,  in  the  divorce 
proceeding,  to  the  custody  of  their 
mother,  can  and  ought  to  make  no 
difference.  Their  mother  was  still 
legally  bound  for  their  support,  and 
it  would  be  a  double  misfortune  to 
them  to  be  deprived,  on  account  of 
the  unhappy  termination  of  the  mar- 
i  iage  of  their  father   and    mother, 


460  KKISTKAINT    OF    TKSTAMKNTAKV    DISPOSITION. 

The  will  must  never  contravene  the  statute.  Whether  the 
homestead  provision  for  the  family  be  to  conserve  homes  for 
the  good  of  the  state,  as  it  is  in  nearly  all  the  states,  or  be  a 
charitable  provision  for  impecunious  widows  and  children,  as 
it  is  under  some  exceptional  statutes,  the  rule  is  still  the 
same  —  that  the  provision  cannot  be  defeated  by  testaments 
ary  disposition.  In  one  state,  where  the  owner  of  a  home- 
stead may  freely  sell  it  without  the  concurrence  of  his  wife; 
and  may  sell  community  proj)erty  without  her  consent,  as  he  is 
the  head  of  the  community,  he  cannot  cut  her  off  by  \vill  from 
the  right  to  claim  a  thousand  dollars  from  his  estate  when  she 
has  nothing  of  her  own,  or  so  much  as  will  make  up  that  sum 
when  added  to  her  property  if  it  be  less.^  She  becomes  a 
usufructuary  of  the  money,  but  the  ])rincipal  goes  to  the  chil- 
dren upon  her  death,  and  she  is  required  to  give  security;  but 
if  there  be  no  children,  she  need  give  no  security  but  may 
take  the  allowance  absolutely,  since  it  does  not  return  to  the 
estate.-  The  court  said,  in  the  case  last  cited,  that  the  act 
Avas  "  intended  to  provide  for  the  Avidow  and  minor  children 
of  a  deceased  person,  left  in  necessitous  circumstances.  .  .  . 
It  was  a  sum  taken  from  the  succession  and  bestowed  as  a 
bounty  upon  the  widow  and  minor  children."  This  bounty 
is  called  "homestead,"  but  the  humane  policy  of  its  author- 
ization is  very  different  from  the  policy  of  homestead  laws  in 
general. 

The  riffht  of  the  survivor  of  the  marital  homestead-holders 
has  been  held  to  be  subject  to  the  disposal  of  the  owner  by 
last  testament ;  that  is,  the  husband  or  wife  who  has  the  legal 
title  may  will  it  so  that  the  survivor  will  take  nothing.  Only 
in  case  of  intestacy  Avill  the  provision  favoring  the  survivor 
operate.' 

The  court  say,  in  the  case  above  cited,  speaking  of  the  stat- 
ute cited:  "It  was  .not  intended  to  interfere  with  the  right  of 
the  owner  to  dispose  of  such  property  in  the  same  manner 
and  with  the  same  effect  that  he  or  she  might  dispose  of  other 

1  Succession  of  Hunter,  13  La.  » Kelly  v.  Aired,  65  Miss.  495 ;  Nor- 
Ann.  257.  ris  v.  Callahan,  59   Miss.    140;  Miss. 

2  Welsh  V.  Welsh,  41  La.  Ann.  717,  Code,  1880,  g  1277. 
and  cases  therein  cited ;  Rev.  Stat 

of  La.,  §  2885. 


WILLS    CONSISTENT    WITH    Hu.MK.«,Tr AIJ    lilGIITS.  401 

real  estate  by  will.  When  there  has  been  no  testamentary 
disposition  of  the  homestead  by  the  owner,  the  survivint,'-  hus- 
band or  wife,  as  the  case  may  be,  takes  by  descent ;  but  the 
right  of  the  survivor  is  not  absolute,  but  dependent  on  the 
owner  dying  intestate  as  to  the  homestead." ' 

If  the  husband  die  intestate  and  childless,  his  widow  does 
not  take  half  his  estate  and  the  homestead  in  addition.^ 

A  husband  willed  his  homestead.  His  widow  owned  an  es- 
tate in  her  own  right,  which,  with  the  money  paid  her  on  her 
husband's  life  insurance  policy,  was  equal  to  w^hat  she  would 
have  been  entitled  to  from  her  husband's  estate  had  she  been 
impecunious.  Under  these  circumstances,  the  will,  devising 
the  homestead  to  another,  was  sustained.^ 

The  disposition  of  the  homestead  by  will  being  forbidden 
by  the  constitution  of  a  state,  a  testator  was  held  to  have  died 
intestate  so  far  as  his  homestead  was  concerned.  His  testa- 
mentary disposition  of  it  went  for  nothing.  The  item  be- 
queathing the  homestead  was  treated  as  unwritten.*  Though 
the  legatee  was  a  resident  of  the  state,  he  acquired  no  rights 
by  the  will  against  non-resident  heirs.^ 

§  6.  Wills  Consistent  with  Homestead  Rights. 

A  wife,  owning  the  property  constituting  the  homestead  of 
herself  and  her  husband,  may  will  a  half  interest  in  it  or  less, 
so  that  the  devisee  may  take  at  her  death.  The  surviving 
husband  is  not  thus  divested  of  any  right.^  The  inhibition  of 
alienation  without  "  the  joint  consent  of  husband  and  wife, 
when  that  relation  exists,"  is  inapplicable  to  such  a  devise. 
The  disposition  of  property  by  will  is  not  an  alienation  of  it 
in  the  sense  of  the  inhibition.  The  title  of  the  testator  is  not 
divested  by  last  will  and  testament,  in  any  case.  Nothing  is 
transferred  or  conveyed  by  him  to  the  devisee ;  he  retains  title 

iThe  remedy  of  the  survivor  when  Code,  1880,  g  1277.     But  see  ameud- 

cut  off  is  to  renounce  the  will  and  ment,  Acts  of  1882,  p.  112. 

claim  a  distributive  share  of  the  es-  *  Scull  v.  Beatty  27  Fla.  426 ;  9  So. 

tate,  in   Mississippi.     Code,  §§  1172-4.  4 ;  Wilson  v.  Fridenburg,  19  Fla.  461 ; 

See  Turner  v.  Turner,  30  Miss.  428 ;  same  parties.  21  Fla,  386. 

Nash  v.  Young,  31  Miss.  134.  Ud.;  Miller  v.  Finegau,  26  Fla.  29 ; 

2  Glover  v.  Hill,  57  Miss.  240.    Many  S.  C,  7  So.  140. 

cases  cited  by  counsel  contra.  ^  Vining  v.  Willis,  40  Kas.  609. 

'^  Osburn  v.  Sims,  62  Miss.  429 ;  Miss. 


402  RESTRAINT    OF    TESTAMENTARY    DISPOSITION. 

and  control ;  he  may  make  a  second  will,  a  deed  or  a  inort: 
gage  with  reference  to  the  same  property  first  bequeathed, 
since  the  one  named  as  devisee  acquires  no  rights  prior  to  the 
testator's  death.^ 

It  would  be  different  if  a  wife  or  husband,  having  the  legal 
title  to  the  homestead,  should  convey  a  half  interest  in  it  by 
deed  to  be  operative  only  at  the  death  of  the  grantor.  In 
such  case,  the  grantee  would  acquire  a  present  interest  which 
he  could  convey  with  like  restriction  as  to  his  grantor's  death. 
Eights  are  vested  at  once.  This  is  such  an  alienation  as  con- 
templated in  the  inhibition  mentioned.  Both  the  husband  and 
the  wife  must  join  to  make  such  a  deed  relative  to  their 
homestead. 

The  husband  may  Avill  the  homestead  to  his  wife,  and  the 
devise  will  take  effect  immediately  at  his  death,  though  he 
may  have  devised  that  his  debts  be  first  paid.  The  title  was 
transferred  at  once  to  her  in  such  a  case.  She  would  have 
been  entitled  to  one-half,  had  there  been  no  will,  and  the  testa- 
tor could  bequeath  all,  so  as  to  give  her  entire  possession 
at  his  death,  when  he  left  no  children  as  occupants  of  the 
homestead.  The  devise  would  have  been  subject  to  their  in- 
terest had  there  been  any  such  children  thus  occupying.^ 

A  homestead  goes  to  the  devisee  exempt  from  the  personal 
debts  of  the  testator,  just  as  it  goes  to  the  widow  and  children 
when  the  owner  dies  intestate.'  Both  a  rural  and  an  urban 
homestead  were  held  to  descend  to  heirs  free  from  the  de- 
cedent's debts,  when  both  were  within  the  monetary  limit 
and  separated  from  each  other  only  by  a  railroad.'*  There  was 
no  will,  but  a  devise  of  the  same  property  to  the  heirs  would 
not  have  altered  the  result. 

A  testator,  possessed  of  land  which  had  been  set  apart  as 
the  homestead  of  himself  and  wife,  bequeathed  it.  At  his 
death,  his  widow  retained  it  as  her  homestead  during  her  life. 
The  devisee,  at  her  death,  brought  an  action  of  ejectment  to 

1 16.;  Comstock  v.  Adams,  23  Kas.  3  Johnson  v.  Harrison,  41  Wis.  381. 

524:  Martindale  v.   Smith,   31   Kas.  So  under  Tay.  Stat,  1171,  §§  4,  5; 

273.  Laws  1864,  ch.  270. 

2  Martindale  v.  Smith,  31  Kas.  270.  *  Parisot  v.  Tucker,  65  Miss.  439 ; 

See  Vandiver  v.  Vandiver,   20  Kas.  Mississippi    Code    (1880),   §§   1248-9, 

501 ;  Dayton  v.  Donart,  22  Kas.  256 ;  1277. 
Comstock  V.  Adams,  23  Kas.  514,  524. 


WILLING  THK   IIOMHSIEAO,  ETC. KLIOCTIOX  NOT  NECESSAUV.       4ri.'{ 

recover  the  land,  under  the  will.  It  was  objected  that  the 
complaint  did  not  aver  how  long  the  widow's  homestead  right 
was  to  endure,  or  that  it  had  been  terminated.  l>ut  as  the 
homestead  had  been  the  separate  property  of  the  husband,  it 
could  not  have  been  assigned  to  his  widow  by  greater  title 
than  life  tenure;  and  as  her  death  was  alleged  in  the  com- 
plaint, further  particularity  was  unnecessary.  It  was  further 
objected  that  the  decedent  may  have  left  children  who  have 
rights  in  the  family  homestead,  for  aught  the  complaint  shows; 
but  the  court  said  that  the  allegation,  that  it  had  been  set 
apart  to  the  widow,  disposed  of  the  objection.  The  complain- 
ant pleaded  as  devisee  under  the  will  and  as  owner  of  the 
land.  General  allegations  may  help  to  make  a  complaint 
certain  against  such  objections.' 

When  the  homestead  of  the  widow  and  minors  has  ter- 
minated in  any  way,  the  heirs  take  possession  as  though  their 
right  had  never  been  suspended.  The  estate  goes  into  their 
hands  free  from  their  ancestor's  liabilities,  under  some  state 
homestead  systems ;  subject  to  such  liabilities,  under  others.^ 

§  7.  Willing  the  Homestead  aud  More:  Election  when 
Unnecessary. 

There  is  no  need  of  election  when  the  property,  devi«ed  to 
one  who  has  the  right  of  homestead  under  the  statute,  is  not 
greater  than  that  which  the  devisee  may  take  under  the  stat- 
ute. In  such  case  the  rule  of  election  has  no  application.  The 
will  operates  on  nothing  beyond  the  statutory  allowance.  No 
written  renunciation  of  it  is  necessary  in  such  case  when  the 
law  itself  gives  the  devisee  precisely  what  the  will  purports  to 
give. 

A  husband  willed  to  his  wife  all  his  estate  after  the  pay- 
ment of  his  debts,  to  be  held  during  her  widowhood,  and  to 
be  disposed  of  by  her  for  her  support  if  necessary  —  any  bal- 
ance, at  her  death,  to  go  to  his  children. 

She,  as  executrix,  had  the  will  probated,  paid  debts,  and 
occupied  the  homestead.  Three  years  after  her  husband's 
death   she   was   remarried.      Then    the   children,  all   adults, 

1  Hutchinson  v.  McNally,  85  Cal.  sen  v.  Goodspeetl,  60  III  281 ;  Kemp 
619.  V.  Kemp,  42  Ga,  527. 

-'  Wolf  V.  Ogden,  66  111.  224 ;  Bur- 


46i 


KKSTKAINT    OF    TESTAMENTARY     DISPOSITION. 


brought  ejectment.  The  court  said  that  she  had  probably  in- 
tended to  act  under  the  will,  but  recognized  her  right  to  claim 
under  the  statute.  Since  the  will  gave  her  no  greater  estate 
than  the  law  gave  her,  there  was  no  necessity  for  election.' 
She  was  entitled  to  the  same  homestead  estate  which  her  hus- 
band had  owned,  there  being  no  minor  children."  That  estate 
was  vested  absolutely  in  her  by  the  law  then  in  force.^  The 
will  did  not  give  her  more,  but  less,  than  the  estate  gave,  for 
it  did  not  devise  the  property  to  her  absolutely.  It  had  been 
held,  before  the  decision  on  this  will,  that  if  a  widow  accept 
property  under  a  will  which  is  greater  in  amount  than  that 
which  the  law  would  give  her,  she  cannot  afterwards  claim 
homestead  right  when  it  is  repugnant  to  the  terms  of  the  will.* 

It  would  have  been  better,  however,  if  the  devisee  under  the 
above  stated  will  had  formally  renounced  it  instead  of  acting 
apparently  under  it  till  her  remarriage.  She  would  thus  have 
avoided  litigation  and  the  setting  of  a  precedent  that  may 
lead  to  new  cases  under  circumstances  of  doubtful  election. 
She  certainly  took  a  different  estate  under  the  law  from  that 
which  the  testator  sought  to  give  her ;  and,  under  such  circum- 
stances, election  by  formal  act  would  have  simplified  the  situ- 
ation. Ordinarily,  there  should  be  election  in  such  case,  since 
silence  would  imply  assent  to  the  will.^ 

Occupancy  has  been  considered  equivalent  to  election  to 
take  homestead  when  the  question  was  between  that  and 
dower  or  the  distributive  share  of  the  estate.* 

A  widow  who  did  not  renounce  her  husband's  will  by  for- 
mal act,^  but  who  occupied  the  family  homestead  till  her  death, 
a  period  of  six  years,  was  held  to  have  elected  to  take  the 

1  Burgess  v.  Bowles,  99  Mo.  543, 5^7; 
Hasenritter  v.  Hasenritter,  77  Mo.  162. 

-  Register  v.  Hensley,  70  Mo.  190 ; 
Skouten  v.  Wood,  57  Mo.  380. 

3  Wagner's  Stat.  (Mo.),  p.  698,  §  5 ; 
p.  88,  §§  33,  35 ;  Cuinmings  v.  Cum- 
mings,  51  Mo.  261 ;  Hastings  v,  My- 
ers, 21  Mo.  519;  Freund  v.  McCall, 
73  Mo.  343 ;  Kelsay  v.  Frazier,  78  Mo. 
111. 

*  Davidson  v.  Davis,  86  Mo.  440. 
(This  case  was  approved  in  Burgess 
V.  Bowles,  supra,  and  reconciled  with 


J 


Kaes  V.  Gross,  93  Mo.  647,  which  had 
overruled  it  inadvertently.) 

^  Register  v.  Hensley,  70  Mo.  189 : 
Daudt  V.  Music,  9  Mo.  App.  169. 

6  McDonald  v.  McDonald,  76  la. 
137 ;  Thomas  v.  Thomas,  73  la.  657 ; 
Mobley  v.  Mobley,  73  la.  654 ;  Dar- 
rah  V.  Cunningham,  72  la.  123 ;  Hol- 
brook  V.  Perry,  66  la.  286 ;  Burdick 
V.  Kent,  52  la.  583;  Whitehead  v. 
Conklin,  48  la.  478;  Butterfield  v. 
Wicks,  44  la.  310. 

"  la  Code,  g  2452. 


SPIRIT    OF    EXKIMI'TION    LAWS — ELECTION.  465 

homestead  for  life  in  lieu  of  dower.  Her  occupancy  was 
equivalent  to  election.'  If  she  occupied  a  larger  tract  than 
the  law  allows  for  homestead,  wliich  included  the  prescribed 
amount,  her  right  to  homestead  would  not  thereby  be  de- 
feated, or  the  presumption  of  her  election  to  take  it  over- 
come.^ 

The  wife  is  not  required  to  elect  between  a  bequest  by  the 
husband  of  half  his  property  —  and  her  interest  in  the  home- 
stead.' 

§  8.  Spirit  of  Exemption  Laws  —  Election. 

In  a  leading  case,  construing  a  will  in  which  bequests 
were  expressly  in  lieu  of  dower  but  not  thus  given  in  lieu  of 
homestead  —  a  case  in  a  state  where  homestead  devise  is 
not  expressly  prohibited  by  statute  —  the  court  took  the 
spirit  of  the  statute  into  consideration,  and  inferred  from 
the  non-alienation  clause,  the  vesting  of  the  homestead  in  the 
widow  and  children  of  the  decedent  householder,  and  the 
preservation  of  it  from  creditors  for  family  use, —  all  under 
the  provisions  of  the  statute, —  that  these  purposes  cannot  bo 
defeated  by  the  w^ill  of  the  householder.  It  is  argued  from 
analogy,  that  as  he  caimot  defeat  dower  he  cannot  defeat 
homestead  which  resembles  it.  It  is  inquired :  If  the  homo- 
stead  is  not  to  be  kept  for  the  widow  and  minor  children, 
"  why  should  it  not  be  api^ropriated  to  the  purpose  of  paying 
honest  creditors  as  well  as  leave  it  to  the  caprice  of  the  hus- 
band to  dispose  of  b}'^  will?  Why  should  the  husband  be  re- 
strained from  deeding  or  mortgaging  it  during  his  life  and  be 
permitted  to  will  it  away  when  he  dies?"  Pertinent  ques- 
tions, had  they  been  addressed  to  the  legislature,  the  reader 
may  say ;  but,  to  show  the  spirit  of  the  legislation  already 
done,  they  are  admissible  here.  The  will  before  the  court 
was  silent  as  to  homestead ;  and  the  point  to  be  decided  was 
w^hether  the  widowed  devisee  must  elect  between  homestead 
and  the  bequests.  The  intent  of  the  testator  on  this  point 
was  sought  in  the  terms  of  the  testament.  She  must  be  ex- 
cluded from  neither  if  exclusion  does  not  clearly  appear  to 
have  been  the  intent.*     The  conclusion  was  that  the  husband, 

J  Schlarb  v.  Holdcrbaum,  80  la.  394.        3  McGowan  v.  Baldwin,  46  Minn. 
2  Stevens  v.  Stevens,  50  la,  491.  477. 

30  «  Re  Wells'  Estate,  68  Vt  lia 


460  KESTEAINT    OF   TESTAMENTARY    DIEiPOSITION. 

who  had  expressly  willed  bequests  to  her  in  lieu  of  dower, 
meant  also  that  they  should  be  in  lieu  of  homestead;  but  that 
the  spirit  of  the  law  forbade  him  from  devising  the  homestead 
from  his  wife  and  children  absolutely:  so  she  was  put  to  her 
election  between  her  right  under  the  will  and  her  right  under 
the  statute,^  The  court  said  no  distinction  could  be  made  be- 
tween dower  and  homestead  as  to  the  rule  of  election  between 
either  and  a  bequest  in  lieu  of  it.  The  rule  as  to  dower  is 
that  the  will  must  clearly  show  a  bequest  is  in  lieu  of  dower  — 
otherwise  she  may  take  both. 

The  spirit  of  a  homestead  statute  similar  to  the  one  above 
construed  was  held  inconsistent  with  the  power  of  the  hus- 
band to  will  the  homestead.^  The  statute  exempted  the  home- 
stead from  execution ;  forbade  the  sale  or  incumbrance  of  it 
by  the  husband-owner  alone;  and  continued  it  after  the  hus- 
band's death  during  its  occupancy  by  his  widow  and  minor 
children.  The  right  created  was  declared  to  be  a  freehold  es- 
tate during  its  continuance,  which  could  not  be  terminated 
by  the  will  of  the  husband  without  violence  to  the  spirit  and 
intent  of  the  statute.' 

A  widow,  not  actually  electing  to  take  under  her  husband's 
will,  and  not  having  her  share  of  the  estate  laid  off  to  her, 
lived  several  years,  till  her  death,  on  lands  including  the  acre- 
age allowed  as  a  homestead  (forty),  and  much  more.  This  was 
a  passive  election  to  take  homestead  in  lieu  of  dower.  Her 
interest  did  not  descend  to  her  heirs,  as  it  was  a  life  estate.* 
Her  occupation  of  one  hundred  and  sixty  acres  instead  of 
forty  did  not  defeat  her  right  to  homestead  in  the  included 
forty .^  Her  failure  to  have  the  limited  area  platted  did  not 
defeat  that  right.^ 

A  wife,  by  will,  though  she  be  entitled  to  make  one,  can- 
not cut  off  her  surviving  husband  from  his  right  of  tenancy 
by  curtesy  (called  dower),  or  his  right  of  homestead,  when 
they  are  conferred  by  law,  or  when  he  has  the  legal  right  of 
election  between  the  two.'' 

I  Meech  v.  Meech,  37  Vt.  414.  5  /?,.;  Stevens  v.  Stevens,  50  la.  491 ; 

« Brettun  v.  Fox,  100  Mass.  234.  Darrah  v.  Cunningham,  72  la  123. 

3  lb.  6  Thomas  v.  Thomas,  73  la.  657. 

<  Schlarb  V.  Holderbaura,  80  la.  394.  7  Stewart  v.  Brand,  23  la.  481. 
Compare  McDonald  v.  McDonald,  76 
la.  137. 


SPIRIT    OF    EXKMrTIO.X     LAWS KLhiCTION.  407 

When  a  homestead  is  inalienable  by  a  married  woman  act- 
ing alone  in  the  conveyance,  while  such  person  is  duly  auth(jr- 
ized  to  devise  any  of  her  property  without  restraint,  there 
can  be  no  doubt  about  the  meaning.  Alienation  or  conveij- 
ance  cannot  be  then  rightfully  construed  to  include  disposition 
by  will.     Take  these  provisions : 

"No  conveyance  of  the  homestead  interest,  when  this  interest 
is  separate  property  of  the  wife,  shall  be  valid  or  binding  unless 
signed  and  acknowledged  by  the  husband  living  with  his  wife, 
and  also  by  her  as  the  owner."  ^  A  married  woman  may  dispose 
of  her  estate,  real  and  personal,  by  last  will  and  testament,  in 
the  same  manner  as  if  she  were  not  married.^  Taking  these 
laws  together,  a  married  woman  may  dispose  of  her  individ- 
ually-owned homestead  by  will  but  not  by  deed.  So  the  cited 
sections  have  been  understood.  A  wife,  living  with  her  hus- 
band, willed  her  homestead  to  her  brother.  The  will  was 
maintained  by  the  court,  which  said  that  the  legislature  had 
not  intended  to  prevent  the  owner's  disposition  of  homestead 
property  by  will,  "  in  the  same  manner  and  with  the  same  ef- 
fect "  that  other  real  estate  may  be  devised.  And  the  rule 
was  declared  the  same,  whether  the  husband  or  wife  be  the 
sole  owner  and  testator.^  Yet  it  was  added  that  if  the  survi- 
vor be  dissatisfied  with  the  will  of  his  deceased  spouse,  his 
remedy  is  by  renouncing  the  will  and  claiming  his  distributive 
share,  whether  it  include  homestead  or  other  property ;  or,  if 
the  will  made  no  provision  for  him,  to  claim  without  renounc- 
ing.* So,  while  the  will  of  the  testatrix  is  valid,  and  will  have 
effect  unless  statutory  rights  are  claimed,  the  deed  of  a  mar- 
ried woman  alone  would  be  absolutely  void  as  a  conveyance 
of  her  homestead.  In  the  absence  of  a  will  and  of  children, 
the  survivor  takes  the  homestead  by  descent;  the  right  of  sur- 
vivorship depends  on  intestacy ;  ^  yet  as  the  survivor  may  claim 
under  the  statute  despite  the  will,  the  difference  between  tes- 
tacy and  intestacy  need  not  irrevocably  affect  the  survivor's 
rights. 

Under  a  statute  expressly  exempting  homestead  "  from  the 

1  Mississippi  Code  (1880),  §  1260.  ner  v.  Turner,  30  Misa  428 ;  Nash  v. 

2  26.,  g  1169.  Youns,  31  Miss.  134. 

3  Kelly  V.  Aired,  65  Miss.  497.  »  Kelly  v.   Aired,  supra;  Norris  v. 
*Ib.,  citing  Code,  §§  1172-4;  Tur-  Callahan.  59  Miss.  140. 


408  KESTKAINT    OF    TESTAMK.XTAKY    DISPOSITION. 

laws  of  conveyance,  descent  and  devise,"  '  the  following  case 
arose:  A  wife,  owning  her  homestead  and  other  real  estate 
in  her  own  right,  and  residing  with  her  husband  on  the  home- 
stead, willed  half  of  the  land  to  her  nephew,  and  the  other 
half  (which  included  the  homestead)  to  her  brother.  She  cut 
her  husband  off  —  not  with  a  shilling  —  but  with  one  ton  of 
hay  (printed  in  italics  in  the  report  of  the  case,  perhaps  to 
call  attention  to  the  innuendo). 

Her  husband  eschewed  the  hay  by  renouncing  the  will  and 
claiming  under  the  statute.  The  court  decided  that  he  was 
entitled  to  half  the  lands  in  fee,  under  the  governing  statute,^ 
and  said  that  the  homestead  act  in  force  at  the  time  of  the 
wife's  death,  "  in  express  terms  exempts  the  homestead  from 
the  laws  of  conveyance,  descent  and  devise.  Under  this  stat- 
ute, which  must  control,  the  wife  had  no  power  to  devise  the 
homestead  to  another,  and  thus  deprive  the  husband  of  that 
estate." ' 

1  Stat,    of    Illinois    (Starr   &    C),        2  Dower  Act,  §  12. 
p.  1097,  Act  of  1874.  3  Henson  v.  Moore,  104  lU.  403, 407. 


CHAPTER  XV. 


SALE,  WITH  HOMESTEAD  USE  RESERVED. 


1.  By  Owner  —  Generally. 

2.  By  the  Owning  Husband's  Sole 

Deed. 

3.  Reservation  of  Use  Necessary. 

4.  Restiaint     and     Exemption  — 

When  Correlative. 

5.  Sale  by  Solvent  Owner  Before 

Selection. 

6.  No  Sale  by  Insolvent  Debtor. 


§7. 


Sale  by  Husband  and  Wife. 

8.  Execution  Sal& 

9.  Sale  of  the  Reversion. 

10.  Sale  by  Administrator. 

1 1.  No  Sale,  During  Homestead  Oc- 

cupancy, by  Administrator. 
13.  The  Fee  of  Homestead  Not  an 

Asset 
13.  Comment 


§  1.  By  Owner  —  Generally. 

Since  the  jus  disponendi  is  a  comraon-law  riglit,  and  any 
legal  restraint  upon  it  must  be  strictly  construed,  it  follows 
as  a  general  rule  that  a  homestead,  that  is,  the  dwelling  and 
appurtenances  occupied  by  a  family  and  exempt  from  forced 
sale,  may  be  freely  sold  or  mortgaged  by  the  owner,  except 
so  far  as  such  alienation  is  validly  interdicted.'  Generally 
speaking,  there  is  no  interdiction  respecting  the  alienation  of 
homesteads  by  unmarried  owners.  On  the  other  hand,  it  is 
almost  as  general  that  a  married  man  cannot  dispose  of 
his  homestead  without  the  consent  of  his  wife.  The  inhi- 
bition is  not  limited  to  those  who  are  insolvent  debtors  but 
extends  to  all  husbands,  whether  indebted  or  not  (though  the 
rule  in  one  state  is  exceptional  in  this  respect),  and,  by  many 
statutes,  it  extends  to  wives  too  when  they  own  homesteads. 

Where  homestead  dedication  is  optional  with  the  owner, 
and  the  privilege  of  exemption  is  dependent  upon  his  action, 
his  powder  of  alienation  of  his  home  property  is  unrestrained 
up  to  the  time  of  his  making  a  valid  dedication  and  thus  tak- 
ing upon  himself  the  onerous  conditions  of  the  benefit.- 
Where  no  formal  declaration  is  required,  disability  to  sell  has 
been  imposed  by  the  legislature  in  conjunction  with  the  grant 
of  the  exemption  privilege.''     And   exemption  has  been  ac- 

'Hannon  v.  Sommer,  10  Fed.  601.        3  Kennedy  v.  Stacey.  1  Bax.  220. 
2Boreham  v.  Byrne,  83  Cal.  23,  :^S. 


4:70  8ALP^,  WITH    HOMESTEAD    USE    EE8EEVED. 

corded,  with  the  owner  left  free  to  alienate  without  any  res- 
ervation ;  ^  and  it  has  been  accorded  with  the  owner's  selling 
ca))acity  unaffected  though  his  right  to  hypothecate  was 
taken  away.^ 

There  has  been  an  important  difference  among  expositors 
as  to  the  application  of  the  restraint ;  as  to  whether  it  is  a  re- 
striction upon  the  alienation  of  the  exempt  realty  itself,  or  of 
such  interest  in  it  as  is  essential  to  family  protection.  The 
diverging  point,  whence  the  holders  of  opposing  views  have 
started  on  their  different  roads,  is  the  word  homestead.  Stat- 
utes, precisely  alike  in  the  employment  of  the  word,  have 
been  interpreted  differently  by  the  courts :  most  of  them  hold- 
ing that  the  sale  of  the  exempt  realty  is  restrained,  and  the 
others  that  only  the  sale  of  the  interest  above  mentioned  is 
restrained ;  the  former  holding  that  Jiomestead  means  the  ex- 
empt family  dwelling,  while  the  latter  treat  it  as  the  right  or 
privilege  of  occupancy. 

If  hoinestead  anywhere  does  not  mean  a  prescribed  quantity 
of  realty  (measured  by  acreage  or  appraisement),  but  only  the 
right  of  occupancy,  use  and  usufruct  of  such  quantity,  as 
some  assert,  then  only  that  would  be  affected  by  the  common 
alienation  clause :  why  then  might  not  the  owner  alone  sell 
the  fee,  reserving  the  homestead  in  that  sense?  His  wife  and 
children  would  still  be  sheltered,  and  all  that  the  law  contem- 
plates by  exemption,  under  such  a  definition  of  hom.estead^ 
would  remain.  His  wife's  joinder  would  be  necessary  to  sell 
the  use  and  privilege^  but  not  to  sell  the  realty  with  the  use 
reserved.  First  he  could  sell  the  fee,  reservmg  life  estate  for 
him  and  her ;  then  he  could  sell  the  life  estate,  reserving  lease- 
hold right  at  a  stipulated  rent  —  and  the  family  would  remain 
with  him  on  the  premises  with  the  homestead  intact.  The 
children  have  no  rights  under  the  homestead  laws,  generally 
speaking,  which  are  vested  presently  in  them  beyond  the  con- 
trol of  their  parents,  their  natural  guardians.  The  wife  has 
no  rights,  under  such  laws,  further  than  to  be  protected  in  her 
homestead :  so,  if  homestead  be  defined  as  above  mentioned, 
she  can  have  nothing  to  say  when  that  is  not  conveyed  by  her 


1  Derr  V.  Wilaou.  84  Ky.  14.  ^Van  Wickle  v.   Landry,   29  La. 

Ann.  330. 


BY    OWNER  —  GENERALLY.  471 

husband  who  merely  sells  his  own  property  with  that  ri'^^ht 
excepted  fi'oni  the  sale.  Nobody  goes  so  far  as  this  in  claim- 
ing the  exceptional  api)lieatiou  of  the  restraint,  but  how  can 
these  consequences  be  avoided?  They  stare  the  exceptional 
definition  in  the  face. 

Everybody  shrinks  from  such  results.  After  citing  several 
cases  of  its  own,  a  court  said:  "These  decisions  have  failed 
to  recognize  any  distinction  between  the  conve_yance  of  the 
homestead  premises  and  the  mere  right  of  homestead,  which 
is  recognized  by  some  respectable  authorities.     .  It  is 

manifest  that  if  the  owner  were  permitted  to  incumber  the 
fee  or  reversion  of  his  homestead,  as  distinguished  from  the 
mere  right  of  undisturbed  occupancy  —  and  by  a  mode  of 
alienation  dispensing  with  the  voluntary  assent  and  signature 
of  his  wife  —  the  provision  of  the  constitution  under  discus- 
sion ^  would  have  little  more  binding  efficacy  than  a  rope  of 
sand,  and  its  policy  could  be  evaded  by  the  husband  with  fatal 
facility.  All  that  would  be  necessary,  to  effect  such  alienation, 
would  be  for  the  husband  to  convey  or  mortgage  the  premises 
one  day,  and  abandon  them  the  next;  all  of  which  might  be 
done  against  the  most  earnest  protest  of  an  unwilling  wife."  ^ 
Sole  sale  or  mortgage  by  the  husband  is  void.* 

If,  in  a  former  case,  decided  by  this  court,  there  was  any 
recognition  of  a  distinction  between  a  conveyance  of  the  fee 
of  homestead  property,  and  that  of  homestead  right  in  such 
property,*  the  very  opposite  view  is  here  strongly  ])resented. 

A  statute  which  forbade  the  husband's  conveyance  of  the 
homestead  or  miy  interest  therein  by  his  sole  deed  was  held  to 
forbid  his  conveyance  of  either  his  own  or  his  family's  interest 
in  the  homestead.  His  deed  is  absolutel}^  void  because  he  has 
no  capacity  to  make  it.^     He  cannot  alone  sell  the  homestead 

1  Const  of  Alabama  (1875),  art.  X,  McBride,  G9  Ala.  OlO;  Seaman  v. 
§  2,  which  declares  that  a  mortgage  Nolen,  68  Ala.  4G3 ;  Halso  v.  Sea- 
or  other  alienation  of  a  homestead,  wright,  65  Ala.  431 ;  Garner  v.  Bond, 
by  the  owner,  if  a  married  man,  61  Ala.  84;  Cahall  v.  Building  Ass'n. 
"shall  not  be  valid  without  the  vol-  61  Ala.  232;  Balkum  v.  Wood,  58 
untary  signature  and  assent  of  the  Ala.  642;  McGuire  v.  Van  Pelt,  55 
wife."    See  Ala.  Code  (1876),  ^  2822.  Ala.  344. 

2  Alford  V.  Lehman,  76  Ala.  526-9.  ^  Fellows  v.  Lewis,  65  Ala.  343. 

3  Hood  v.  Powell,  73  Ala.  171 ;  Scott  »  Abell  v.  Lothrop,  47  Vt  375. 
V.  Simons,  70  Ala.  352;  Slaughter  v. 


472  SALE,  WITH    HOMESTEAD    USE   RESERVED. 

realty  and  waive  the  homestead  right.'  And,  with  homestead 
meaning  the  exempt  l"amily-houie-))ro])erty,  he  cannot  sell  it 
with  the  homestead  right  exjiressly  reserved,  without  the 
Joinder  of  his  wife  in  the  conveyance. 

After  fixing  the  limit  of  forty  acres  of  land  not  in  any  town 
plat,  or  a  lot  m  such  plat,  neither  exceeding  fifteen  hundred 
dollars  in  value,  as  homestead,  it  is  added,  in  the  constitution 
so  restricting  it,  that  a  "  mortgage  or  other  alienation  of  such 
]and  by  the  owner  thereof,  if  a  married  man,  shall  not  be 
valid  without  the  signature  of  the  wife  to  the  same."^  It  is 
held  under  this  provision  that  alienation  of  the  homestead 
(the  land  exempt)  by  the  husband  alone  is  void  as  to  both 
himself  and  his  wife.*  A  contract  to  sell  the  exemption  right, 
made  by  the  husband  alone,  is  void.*  The  right  is  not  trans- 
latable by  both  himself  and  his  wife.  The  husband  alone 
cannot  waive  this  right.-^ 

§  2.  By  the  Owning  Husband's  Sole  Deed. 

One  state  has  this  provision :  "  Ko  mortgage  or  other  alien- 
ation by  a  married  man,  of  his  homestead,  exempt  by  law 
from  execution,  shall  be  valid  or  of  any  effect  as  to  such 
homestead,  without  the  signature  of  his  wife  to  the  same,"  ^ 

The  inhibition  is  not  exceptional  in  form  or  apparent  signifi- 
cation to  that  which  prevails  in  nearly  all  the  states  which  re- 
strain the  husband  from  alienating  the  homestead  without  his 
wife's  consent,  and  her  signature  to  the  deed.     In  several,  the 

» Jewett  V.  Brock,  33  Vt.  65,     See  131 ;  Sherrid  v.  South  wick,  43  Mich, 

Davis  V.  Andrews,  30  Vt.  678;  Howe  515  ;  Shoemaker  v.  Collins,  49  Mich. 

V.  Adams,  28  Vt.  541,  597 ;  Griffin  v.  Johnson,  37  Mich.  92. 

*  Const,  of  Michigan,  art.  XVI,  §2.  ■*  Stevenson  v.   Jackson,  40  Mich. 

» Dye  V.  Mann,  10  Mich.  291 ;  Mc-  702 ;  Ring  v,  Burt,  17  Mich,  465. 

Kee  V.  Wilcox,  11  Mich.  358;  Ring  V.  ^King    v.    Moore,    10  Mich.   538; 

Burt,  17  Mich.  465 ;  Fisher  v.  Meister,  Beecher  v,  Baldy,  7  Mich.  488 ;  Sny- 

24  Mich.  447 ;  Snyder   v.  People,    26  der  v.  People,  26  Mich.  106 ;  Sherrid 

Mich.  106 ;  Comstock  v.  Comstock,  27  v.  Southwick,  43  Mich.  515. 

Mich.  97  ;  Wallace  v.  Harris,  32  Mich,  6  Sanborn   &   B,'s   Annot,   Stat,  of 

880 ;  Amphlett  v,  Hibbard,  29  Mich,  Wisconsin  (1889),  §  2203 ;  Wis.  Rev. 

298;  Smith  v.  Rumsey,  33  Mich,  183;  Stat,  (1858),  ch,  134,  §  24 ;  R,  S,  (1878), 

Hanchett  v.  McQueen,  32  Mich,  22;  §  2203;  Laws  of  1864,  ch.  270,  §§  1,  2. 

Phillips  V.  Stauch,  20  Mich,  369 ;  Wat-  The  above  extract  is  the  same  in  all 

ertown  Ins.  Co,  v,  G,  etc,  Ca,  41  Mich,  these  successive  statutes. 


BY    THE    OWNING    IIUSBANd's    POLE    DEED.  473 

language  is  almost  uniform  with  the  provision  quoted  above. 
The  following  specimens  will  suffice  to  show  this: 

".  .  .  jMortgage  or  other  alienation  of  such  land  hy  the 
owner  thereof,  if  a  married  man,  sliall  not  be  valid  without 
the  signature  of  the  wife  to  the  same."  ^ 

"A  conveyance  or  incumbi-ance  by  the  owner  is  of  no  valid- 
ity unless  the  husband  and  wife,  if  the  owner  is  married,  con- 
cur in  and  sign  the  same  joint  instrument.'"  ^ 

"  A  homestead  [describing  it]  shall  not  be  alienated  without 
the  joint  consent  of  husband  and  wife  when  that  relation  ex- 
ists." » 

"  The  homestead  of  a  married  person  cannot  be  conveyed 
or  incumbered  unless  the  instrument  by  which  it  is  conveyed 
or  incumbered  is  executed  and  acknowledged  by  both  husband 
and  wife."  ^ 

".  .  .  The  husband  shall  be  debarred  from  and  incapable 
of  selling,  mortgaging  or  alienating  the  homestead  in  any 
manner  whatever,  and  every  such  sale,  mortgage  or  alienation 
is  hereby  declared  null  and  void;  .  .  .  2}?-ovided,  /loivever, 
that  nothing  herein  contained  shall  be  so  construed  as  to  pre- 
vent the  husband  and  wife  from  jointly  conveying,  mortgag- 
ing, alienating  or  in  any  other  manner  disposing  of  such  home- 
stead or  any  part  thereof."  ^ 

By  construction,  however,  the  statute  first  quoted  at  the 
beginning  of  this  section  is  made  exceptional  to  those  verbally 
like  it  in  other  states.  The  dilference  turns  on  the  significa- 
tion given  to  the  word  homestead.  In  other  states  that  word 
usually  is  held  synonymous  with  the  urban  or  rural  quantwri 
of  land  and  improvements  authorized  to  be  held  as  exempt, 
while  in  this  one  it  is  construed  to  mean  the  mere  right  of  oc- 
cupying and  enjoying  that  quantum  while  the  married  bene- 
ficiaries, or  either  of  them,  may  live.  Hence  results,  in  the 
latter,  the  conclusion  that  a  married  owner  of  the  exempt 
realty  may  sell  the  title  in  fee  without  his  wife's  signature  to 
the  deed,  if  he  reserves  life-estate  interest  for  himself  and  her, 
so  that  neither  can  be  disturbed  in  the  enjoyment  and  oecu- 

1  Const.  Mich.,  art.  XVI.  §  2.  *  Civil  Code  California,  g  1242. 

2  McCIaiu's  Code  of  Iowa,  §  81 65.  8  Rev.  Stat  of  Missom-i  (1889),  §  5435. 
»Gen.  Stat  of  Kansas  (1889),  §  2996; 

Const  of  Kas.,  art.  15,  g  9. 


474  SALE,  WITH    HOMESTEAD    USE    KESERVED. 

pancy  which  constitute  homestead  according  to  this  interpre- 
tation. 

This  interpretation  was  given  (the  old  statute  containing 
precisely  the  same  provision  as  that  quoted  above)  in  a  case' 
presenting  the  following  facts: 

A  married  householder  conveyed  his  homestead  to  his 
daughter,  without  his  wife's  signature,  with  this  reservation: 
"  The  party  of  the  first  part  reserves  the  sole,  free  and  abso- 
lute use  and  control  of  all  the  above  described  lands  so  long 
as  he  and  his  wife,  or  either  of  them,  may  live."  On  the 
death  of  both  parents  the  daughter  took  possession.  A  son 
brought  a  suit  of  ejectment  to  recover  his  portion.  The  trial 
court  found  that  the  deed  did  not  convey  the  homestead,  but 
reserved  and  excepted  it;  that  the  deed  conveyed  the  re- 
mainder over  on  the  expiration  of  a  life  estate  to  the  grantor 
for  two  lives  in  being;  that  the  deed  was  valid,  so  that,  on 
the  death  of  the  grantor  and  his  wife,  the  grantee  took  right- 
ful possession  of  the  land  in  fee  simple. 

On  appeal  it  was  held  in  general  that  an  owner  may  convey 
realty  in  fee  with  reservation  of  life  estate;  that  the  common- 
law  rule  of  invalidity  when  such  conveyance  is  a  feoffment  — 
the  freehold  estate  being  created  to  commence  infuturo  —  is 
inapplicable  here  where  the  statute  recognizes  and  defines  es- 
tates in  expectancy  as  "  a  future  estate  is  an  estate  limited  to 
commence  in  possession  at  a  future  day,  either  without  the  in- 
tervention of  a  precedent  estate,  or  on  the  determination,  by 
lapse  of  time  or  otherwise,  of  a  precedent  estate  created  at 
the  same  time.^  By  the  common  law,  there  could  be  no  re- 
mainder conve3"ed  unless  a  precedent  estate  was  created  at  the 
same  time;  that  is,  nothing  could  remain  without  an  estate 
precedent.'  Under  the  statute  cited,  whether  that  preceding 
estate  be  created  in  the  instrument,  or  be  in  existence  before 
the  conveyance  and  reserved  therein,  there  may  be  remainder 
to  commence  in  future.  So  the  court  concluded  that  home- 
stead land  may  be  conveyed  in  fee,  the  conveyance  to  take  ef- 

1  Ferguson  v.   Mason,  60  Wis.  377.     Bissell  v.  Grant,  35  Ct.  288 :     Const 

2  Citing  R.  S.  (1878),  §  2034.  Wis.,  art.  I,  §  14 :    "All  lands  within 
'  Citing  2  Washburn,  Real  Prop,     the  state  are  declared  to  be  allodial, 

(4th  ed.)  592;  Barrett  v.  French,  1  and  feudal  tenures  are  prohibited." 
Ct.  363;  Fish  v.  Sawyer,  11  Ct  545; 


RESERVATION    OF    USE    NECESSARY.  475 

feet  at  a  future  time.  Had  the  land  conveyed  been  other  than 
a  homestead,  its  sale,  to  have  effect  in  future  with  life  estate 
reserved  to  the  grantor,  would  have  been  clearly  valiil. 

The  sale  of  the  homestead,  as  described  in  the  statement  of 
facts,  must  be  tested  by  the  statutory  provision  relative  to 
such  sale,  extracted  above. 

§  3.  Reservation  of  Use  Necessary. 

As  the  court  stated,  it  is  as  firmly  established  in  this  state 
as  in  any,  that  a  married  man's  unqualified  deed  of  the  home- 
stead property,  without  his  wife's  signature,  is  an  absolute 
nullity.  JS^o  reliance  is  put  upon  the  law's  reservation  of  the 
homestead  as  presumably  written  in  the  deed,  but  the  statute 
is  taken  to  be  a  prohibition  of  the  sale  of  the  exempt  quan- 
tum of  realty  by  the  husband-owner  alone.  It  is  conceded 
by  the  court  that  such  a  deed  should  be  held  void,  and  not 
held  as  a  conveyance  of  the  fee  with  the  life  estate  reserved 
to  the  grantor  by  law.  Holding  it  void  is  said  to  be  essential 
to  the  protection  of  the  wife  in  her  rights;  to  save  her  from 
litigation;  to  prevent  a  "  c^omcZ  tq)on  her  interest  or  estate;  ^^ 
and  hence  "  the  better  rule  is  to  hold  a  mortgage  or  other  in- 
strument of  alienation  of  a  homestead  absolutely  void,  if  in 
terms  it  conveys  the  whole  estate  and  -wants  the  signature  of 
the  wife  of  the  grantor."  ^ 

It  will  be  observed  that  the  nullity  of  such  deed  is  not  in- 
ferred from  the  language  of  the  statute  but  from  reasons  ah 
inconvenienti  so  as  not  to  conflict  with  the  construction  given. 
But  it  will  also  be  observed  that  the  term  homestead  is  em- 
ployed, in  the  extract  from  the  opinion  in  the  case  cited,  in  a 
sense  out  of  harmony  with  that  construction;  for  to  speak 
of  the  mortgage  of  a  mere  right  of  occupancy  and  enjoyment 
would  not  be  intelligible.  The  court  here  evidently  meant 
the  exempt  realty  by  the  word  "  homestead." 

The  point  of  the  decision,  after  these  side  concessions,  is 
that  the  wife  need  not  sign  the  deed  conveying  the  property 
if  her  homestead  rights  be  reserved.  The  statutory  term  is 
thus  qualified  and  changed  in  meaning,  apparently.  It  is 
made  to  read  as  follows :  No  mortgage  or  other  alienation 
by  a  married  man,  of  his  homestead  {or  limited  quantity  of 

I  Ferguson  v.  Mason,  60  Wis.  377,  S90-1. 


476  SALE,  WITH    HOMESTEAD    USE    KESERVED. 

realty),  exempt  by  law  from  execution,  shall  be  valid  or  of 
any  effect  as  to  {the  right  of  OGcupying  anil  enjoying  for  life) 
such  homestead,  without  the  signature  of  his  wife  to  the  same. 

These  parenthetical  interpolations  are  fairly  inferred  from 
the  construction  given  by  the  court,  which  claims  to  have  de- 
parted from  the  letter  of  the  statute  to  save  its  spirit,  from 
the  language  of  the  legislator  to  carry  out  his  intentions.^ 

The  application  of  the  rule  that  the  spirit  should  prevail 
over  the  letter  —  or  that  what  is  not  within  the  intention  of 
the  makers  of  the  statute  is  not  within  the  statute  —  has  not 
been  found  necessary  by  the  supreme  courts  of  other  states 
when  deciding  causes  turning  upon  statutory  language  almost 
verhatim  with  the  one  thus  interpolated  and  constructed.  This 
will  be  seen  herein  when  their  deliverances  upon  void  sales 
of  homesteads  come  under  review.  They  have  not  considered 
such  provisions  ambiguous  or  needing  interpretation.  The 
doctrine  in  general  is  that  such  inhibition  renders  alienation 
by  the  husband  without  his  wife's  joinder  absolutely  void, 
conveying  nothing  of  his  interest  or  hers  in  the  homestead.^ 

§4.  Restraint  and  Exemption  —  When  Correlative. 

There  is  a  phrase  in  the  non-alienation  provision  exception- 
ally interpreted  as  above  stated,  w^iich  seems  to  throw  light 
upon  the  meaning  of  the  legislator,  if  any  is  needed.  It  is 
"  exempt  by  law  from  execution."  This  phrase  qualifies 
"  homestead."  The  sentence  is :  "  No  mortgage  or  other  alien- 
tion  by  a  married  man,  of  his  homestead,  exempt  hy  law  froni 
execution,  shall  be  valid  or  of  any  effect  as  to  such  homestead 
\i.  e.,  homestead  exempt  by  law  from  execution],  without  the 
signature  of  his  wife  to  the  same," 

What  was  the  homestead  thus  exempt?  What  was  pro- 
tected from  forced  sale?  It  w^as  land  not  exceeding  forty 
acres,  with  improvements,  Avhich  was  exempt.  Creditors 
could  not  touch  the  fee  nor  any  less  estate  in  this  land.  And 
what  they  could  not  reach  by  forced  sale,  the  husband  alone 

1  lb.;  citing  to  support  the  rule  of  28  Wis.  84;  Woclioska  v,  Wochoska, 

interpretation.  Wilkinson  v.  Leland,  45  Wis.  423. 

2  Pet  627 ;  7  Bacon's  Abr.  (Lib.  ed.),  2  Cases  cited  in  section  5  of  chap- 

458,  tit  II,  §  5  ;  Holmes  v.  Carley,  31  ter  13. 
N.  Y.  289;   Riehl   v.   Bingenlieimer, 


KESTRAINT    AND    EXEMPTION WHEN    COUUELATIVE.  477 

could  not  alienate  at  private  sale  or  in  any  way.  The  ex- 
emption is  made  the  measure  of  the  restraint  uj)on  alienation, 
by  this  statute.     This  is  ])lain  upon  its  face. 

It  is  not  everywhere  true  that  exemption  and  restraint  of 
alienation  are  correlative,  but  anywhere  the  le<,nslator  may 
make  it  so;  and  that  in  the  provision  above  quoted  he  has 
made  it  so,  would  be  said  but  for  the  construction  of  the 
phrase  to  the  contrary  in  the  case  under  review.  There  this 
point  was  made  by  counsel,  and  the  court  met  it  thus:  "It 
has  been  suggested  that  the  exemption  of  a  homestead  from 
the  lien  of  judgments  against  the  owner,  and  from  sale  on 
execution  issued  on  such  judgments,  is  no  broader  or  more 
absolute  than  is  the  disability  of  the  married  owner  to  alienate 
the  same  without  the  concurrence  of  his  wife.  Were  this  a 
correct  proposition,  it  would  necessarily  follow  that  if  the 
owner,  without  the  concurrence  of  his  wife,  could  convey  the 
reversionary  interest  in  the  homestead  propert}^,  a  judgment 
against  the  owner  would  become  a  lien  on  such  interest,  and 
the  same  might  be  sold  on  execution  to  satisfy  the  judgment. 
But  the  proposition  is  not  correct.  The  statute  not  only  pro- 
tects the  homestead  property  from  such  liens  and  sales  while 
it  remains  a  homestead,  but  it  protects  the  same  therefrom  in 
the  hands  of  the  grantee  of  the  owner  of  such  homestead,  his 
devisee  and  his  heirs."  ^ 

The  point  made  by  counsel  was  not  respecting  the  duration 
of  the  exemption  but  its  subject;  it  was  that  the  thing  ex- 
empted from  forced  sale  is  precisely  the  thing  restrained  from 
alienation  by  its  owner;  that  if  that  thing  is  nothing  more 
than  life  estate,  the  remainder  may  be  executed  for  debt  as 
readily  as  it  may  be  alienated  by  the  owner, 

Eecurring  to  the  position  of  the  court  (that  reservation  of 
the  right  of  occupancy  and  enjoyment  for  life,  in  the  deed 
conveying  the  fee,  was  a  reservation  of  the  homestead  within 
the  meaning  of  the  statute),  the  reader  may  ask  whether  the 
husband  alone  could  not  have  sold  more,  under  the  interpre- 
tation of  the  court.  Leasehold  title  is  sufficient  for  homestead. 
Could  the  husband  alone  have  made  a  further  sale  —  that  of 
his  reserved  life  estate  —  stipulating  that  he  have  a  lease  of 

» Ferguson  v.  Mason,  supra,  at  p.  393,  citing  R.  S.  Wis.,  §§  2271,  2280-a 


478  SALE,  WITH    HOMESTEAD    USE    KF-.RRVED. 

the  premises  for  his  life,  and  that  of  his  wife  after  hiin,  and 
pro'-'sing  to  pay  an  annual  rent?  It  is  submitted  that  the 
second  sale  would  have  been  as  consonant  with  the  statute  as 
the  first.     It  comes  within  the  reasoning  of  the  court. 

Whatever  the  weight  of  the  reasoning;  however  exceptional 
the  interpretation  to  that  of  similar  statutes  by  the  supreme 
courts  of  other  states,  the  law  in  the  state  where  this  decision 
was  rendered  is  necessarily  just  what  the  supreme  court  there 
has  declared  it  to  be.  And  the  decision  has  been  there  fol- 
lowed, or  cited  with  approval.^ 

And  it  had  been  partially  foreshadowed.  The  conveyance 
of  title  had  been  held  ineffectual  to  destroy  homestead  when 
there  was  no  intention  of  abandoning  possession.^  The  wife's 
acknowledgment  to  the  conveyance  of  a  homestead  was  not 
required  when  she  had  no  estate  in  the  property  conveyed.^ 
Several  deliverances  on  alienation  by  one  of  the  marital  par- 
ties had  indicated,  to  some  degree,  the  conclusion  reached  in 
the  case  above  reviewed.* 

The  surviving  spouse  has  been  sustained  in  the  alienation  of 
the  homestead,  with  the  right  of  occupancy  by  members  of 
the  family  reserved.^ 

§  5.  Sale  by  Solvent  Owner  Before  Selection. 

In  one  state,  however,  distinction  has  been  made  between 
solvent  and  insolvent  owners,  in  a  late  decision  overruling  or 
modifying  many  previous  ones;  for  it  was  held  that  a  solv- 
ent married  man,  without  joinder  b}'-  his  wife,  may  convey 
his  homestead  -when  it  has  not  been  selected  by  him,  or  al- 
lotted to  him,  though  the  right  of  selection  or  allotment  ex- 
ists.^ The  case  was  in  exposition  of  the  following  provisions 
of  the  constitution  of  that  state :    "  Every  homestead,  and  the 

1  Newman  v.  Waterman,  63  Wis.  Green  v.  Pierce,  60  Wis.  372 ;  Allen 
616 ;  Leach  v.  Leach,  65  Wis.  292 ;  v.  Perry,  56  Wis.  178 ;  Kent  v.  Las- 
Albright  V.  Albright,  70  Wis.  536;  ley,  48  Wis.  265;  Petesch  v.  Ham- 
Herron  v.'  Knapp,  72  Wis.  555.  See  bach,  48  Wis.  451 ;  Hanson  v.  Edgar, 
Keyes  v.  Scaulan,  63  Wis.  346.  34  Wis.    653 ;  Williams   v.   Starr,   5 

i  Murphy  v.  Croucli,  24  Wis.  365.  Wis.  534. 

3  Godfrey  v.  Thornton,  46  Wis.  677,  5  Hannon  v.  Sommer,  10  Fed.  601 ; 

overruling  Hait  v.  Houle,  9  Wis.  472.  Constitution  of  Kansas,  art.  15,  §  9; 

*Wochoska  v.  Wochoska,  45  Wis.  Dayton  v.  Donart.  22  Kas.  256;  Cat- 

423 ;  Baker  v.  Dayton,  28  Wis.  367 ;  ton  v.  Talley.  22  Kas.  256. 

Campbell  v.  Babcock,  27  Wis.   512;  «•  Hughes  v.  Hodges,  102  N.  C.  236. 


SALE    IJY    SOLVENT    OWNER    IJKFOKK    SELECTION.  470 

dwellings  and  building-s  used  therewith,  not  exceeding  in  value 
one  thousand  dollars,  to  be  selected  by  the  owner  thereof,  or, 
in  lieu  thereof,  at  the  option  of  the  owner,  any  lot  in  a  town 
or  village,  with  the  dwelling  and  buildings  used  thereon, 
owned  and  occupied  by  any  resident  of  this  state,  and  not  ex- 
ceeding the  value  of  one  thousand  dollars,  shall  be  exempt 
from  sale  under  execution  or  other  final  process  obtained  on 
any  debt.  But  no  property  shall  be  exempt  from  sale  for 
taxes  or  for  jmyment  of  obligations  contracted  for  the  pur- 
chase of  said  premises.  The  homestead,  after  the  death  of  the 
owner  thereof,  shall  be  exempt  from  the  ]niyment  of  any  debt 
during  the  minority  of  his  children,  or  any  one  of  them.  If 
the  owner  of  a  homestead  die,  leaving  a  widow,  but  no  chil- 
dren, the  same  shall  be  exempt  from  the  debts  of  her  husband, 
and  the  rents  and  profits  thereof  shall  inure  to  her  benefit  dur- 
ing her  widowhood,  unless  she  be  the  owner  of  a  homestead 
in  her  own  right.  Nothing  contained  in  the  foregoing  sec- 
tions of  this  article  shall  operate  to  prevent  the  owner  of  a 
homestead  from  disposing  of  the  same  by  deed;  but  no  deed 
made  by  the  owner  of  the  homestead  shall  be  valid  without 
the  voluntary  signature  and  assent  of  his  wife,  signified  on  her 
private  examination  according  to  law."  ^ 

These  provisions  are  not  artistically  w^ritten,  but  the  mean- 
ing appears.  The  term  Jwmestead  is  employed  throughout  to 
represent  the  exempt  family  dwelling  of  the  owner  limited  in 
value  to  $1,000  —  not  any  fanciful  "estate,"  right,  incum- 
brance or  privilege.  The  restraint  upon  alienation  by  the 
owning  husband's  sole  deed  is  clear.  The  phrase,  "to  be 
selected  by  the  owner,"  is  obscure,  but  other  clauses  enlighten 
it  —  such  as  that  protecting  the  homestead,  after  the  owner's 
death,  in  favor  of  his  widow  or  minor  children,  which  is  not 
to  be  construed  as  dependent  upon  his  having  made  any  selec- 
tion during  his  life-time  further  than  by  occupancy. 

The  restraint  upon  the  husband  is  not  found  in  the  exemp- 
tion provision,  but  in  that  relative  to  alienation.  Only  a 
debtor  is  benefited  by  exemption,  but  a  solvent  owner  is  af- 
fected by  the  interdiction  to  sell  without  his  wife's  concur- 
rence.    This  interdiction,  as  expressed  in  the  article  above 

1  Const  North  Carolina,  art  X,  g§  2-8. 


480  SALE,  WITH    IIOMI'ISTTCAD    USE    RESERVED. 

quoted,  is  substantially  the  same  as  that  prevalent  in  most  of 
the  states. 

The  present  writer  may  be  influenced  unconsciously  by  the 
desire  to  see  the  homestead  laws  of  the  country  harmonized 
as  far  as  possible,  so  that  a  symmetrical  system  may  result; 
but,  guarding  against  any  such  predilection,  he  may  look  dis- 
interestedly upon  the  opinion  of  the  court  and  the  dissent,  in 
the  case  above  cited. 

The  court  held  that  an  unembarrassed  owner  of  land  may  sell 
it  free  from  all  homestead  rights,  without  his  wife's  assent,  if 
it  has  not  been  allotted  to  him  as  a  homestead,  unless  he  has 
mortgaged  it  with  homestead  right  reserved,  rendering  allot- 
ment necessary  upon  foreclosure.  To  simplify  the  point  of 
the  decision,  take  a  husband  free  from  debt  who  owns  land, 
altogether  unincumbered,  which  he  occupies  with  his  wife  and 
children  as  his  and  their  home,  but  which  he  has  not  formally 
selected  as  his  exempt  homestead  within  the  monetary  limit 
of  exemption :  the  deliverance  of  the  court  is  that  he  can  val- 
idly convey  it  with  complete  title :  without  his  wife's  consent : 
can  he?  A  line  of  prior  decisions  seems  to  answer  in  the 
negative;  to  hold  formal  selection  by  the  owner  otherwise 
than  by  occupancy,  or  allotment  by  an  officer,  not  essential 
to  the  existence  of  the  exemptions  or  to  the  effectuality  of 
the  restraint  upon  alienation.^ 

Several  of  these  decisions  were  reviewed  in  the  majority 
opinion,  and  all  cited  in  the  minority  one.  The  former  dwelt 
much  on  the  meaning  of  homestead,  and  homestead  right,  and 
may  have  been  influenced  by  some  fanciful  definitions  which 
do  not  include  realty  as  an  essential  idea  in  the  term.  It 
quotes  approvingly,  from  one  of  the  above  cited  cases : ^  "It 
is  the  settled  construction  of  this  court,  that  the  homestead 
T\g\it  is  a  quality  annexed  to  land    .     .     .     ;  "  f rom  another, 

1  Abbott  V.  Cromartie,  72  N.  C.  292 ;  N.  C.  165 ;  Wyche  v.  Wyche,  85  N.  C. 

Lambert  v.  Kinneiy,  74  N.  C.  348 ;  90 ;  Burton  v.  Spiers,  87  N.  C.  87 

Beavan  v.  Speed,  74  N.  C.  544;  Lit-  Gumming  v.   Bloodworth,  87  N.  C. 

tlejohn    V.    Egerton,   76   N.   C.   468 :  86 ;  Murcbison  v.  Plyler,  87  N.  C.  81 

Bank  v.  Green,  78  N.  C.  247 ;  Whar-  Mebane    v.   Layton,   89   N.   C.   399 

ton  V.  Leggett,  80  N.  C.  169;  Gheen  Markham  v.    Hicks,   90  N.  C.   204 

V.  Summey,  80  N.  C.  187 ;  Murphy  v.  Castleberry  v.  Maynard,  95  N.  C.  281 

McNeill,  82  N.  C.  221 ;  Adrian  v.  Shaw,  2  Gheen  v.  Summey,  supra. 
82  N.  C.  474 ;  Watkins  v.  Overby,  83 


NO    SALE    BY    INSOLVENT    DEBTOR.  481 

"  the  incidental  power  to  have  the  homestead  allotted ; "  '  from 
another,  "  the  right  of  homestead  was  a  quality  annexed  to 
land  [like  a  condition),  wliereby  an  estate  is  exempted  from  sale 
under  execution."  ^ 

With  a  slight  modification  of  the  second  of  the  above  quo- 
tations, the  court,  accepting  these  definitions,  came  to  view 
homestead  as  an  ideal  rather  than  a  tano^ible  thinfj,  before  its 
formal  allotment,  saying:  "The  ideal  homestead,  created  by 
the  constitution  and  located  by  proceedings  under  the  statute, 
is  horn  of  financial  emharrassment,  and  exists  as' to  any  given 
body  of  land  only  when  the  creditor  can  arm  the  sheriff  with 
power  to  sell  it  to  satisfy  a  judgment ;  or  a  mortgagee,  holding 
subject  to  an  express  reservation  of  the  right  of  homestead  in 
the  land  mortgaged,  has  the  right  to  foreclose.  .  .  .  The 
constitution  does  not  annex  the  quality  to  the  land  of  one  who 
is  free  from  financial  embarrassment,  for  the  right,  operating 
as  it  does  to  exempt  an  estate  from  sale  for  debt,  7nust  of  ne- 
cessity he  the  creation  of  the  debt.'''' '  In  other  words,  the  debt 
creates  the  right. 

§  6.  No  Sale  by  Insolvent  Debtor. 

The  doctrine  of  the  court  is  that  there  is  no  homestead  in 
land  unless  the  owner  is  a  debtor  and  has  it  allotted  to  him 
pending  execution ;  that  it  is  merely  ideal  before  he  comes  to 
extremity  —  not  a  tangible  thing,  and  therefore  the  solvent 
owner  may  sell  the  land  his  family  occupies  as  a  home  with- 
out his  wife's  concurrence;  that  he  may  do  so,  because  his 
home,  though  within  the  monetary  limit,  is  not  a  homestead  in 
the  sense  of  the  constitution. 

The  constitution  means  something  tangible  when  treating 
of  homestead :  for,  a  "  lot  in  a  city,  town  or  village,  with  the 
dwelling  and  buildings  used  thereon,  owned  and  occupied  by 
any  resident  of  this  state,  and  not  exceeding  the  value  of  one 
thousand  dollars,"  is  not  an  ideal  thing,  not  a  quality,  not  an 
incidental  power,  not  a  condition,  but  a  dwelling-house  and 
ground  which  a  family  can  occupy,  selected  by  using  it  as  a 
home,  by  any  owner  who  is  a  resident  whether  in  debt  or  not. 
And  it  is  precisely  this  exempt  realty,  susceptible  of  being 

1  Adrian  v.  Shaw,  supra.  '  lb.:  Opinion,  p.  348. 

2Littlejohn  v.  Edgerton,  s^ipra. 
31 


482  SALE,  WITH    HOMESTEAD    USE    RESERVED. 

conveyed  by  deed  (as  an  ideality,  quality,  incidental  power  or 
condition  is  not),  which  the  constitution  forbids  the  owner's 
conveying  by  deed  without  the  wife's  assent. 

If  there  is  fallacy  in  the  reasoning  of  the  court  it  seems  at- 
tributable to  the  common  source  —  misuse  of  terms.  Not 
only  the  definition  of  homestead,  but  the  purpose  of  the  con- 
stitutional provision  under  construction  appears  to  have  been 
misapprehended  so  as  to  lead  to  the  court's  conclusion.  Evi- 
dently, from  bare  reading  of  the  article,  that  purpose  was  the 
conservation  of  homes  for  the  welfare  of  the  state,  as  the  ob- 
ject of  like  provisions  in  homestead  laws  and  constitutional 
ordinances,  in  other  states,  is  understood  to  bo.  But  the  court, 
throughout  the  decision,  assumed  that  the  purpose  is  one  con- 
ceived in  humanity  for  impecunious  debtors,  founded  in  the 
spirit  of  charity  for  insolvent  land-owners  to  the  exclusion  of 
all  sympathy  for  the  landless,  designed  to  relieve  the  obligor 
at  the  expense  of  the  obligee  without  cost  to  the  state.  The 
article,  apparently,  was  thought  to  be  classifiable  with  the 
poor-laws,  though  not  to  benefit  the  abject  poor,  or  those  pe- 
cuniarily below  the  class  of  freeholders.  Hence  the  court  con- 
cluded that  only  owners  in  debt  are  entitled  to  homestead 
protection;  only  the  wives  of  debtors  have  the  veto  power 
over  the  conveyance  of  the  family  home. 

The  principal  source  of  error  in  the  doctrine  laid  down,  if 
there  was  error,  appears  to  be  in  testing  the  wife's  right  of 
defeating  the  alienation  of  her  home,  by  the  exemption  rather 
than  by  the  non-alienation  clause  of  the  article.  The  restraint 
is  not  upon  the  debtor  but  the  ovaner  —  any  owner,  whether 
in  debt  or  not.  "No  deed  made  by  the  owner  of  the  home- 
stead shall  be  valid  without  the  voluntary  signature  and  as- 
sent of  his  wife."  If  he  has  no  wife,  the  inhibition  does  not 
touch  him.  If  he  has  one,  she  may  aid  in  the  preservation  of 
her  home  by  refusing  to  sign  it  away,  whether  he  be  rich  or 
poor,  creditor  or  debtor,  thrifty  or  shiftless  —  so  he  be  merely 
an  "owner"  of  the  "occupied"  "lot"  and  "dwelling,"  worth 
no  more  than  a  thousand  dollars. 

It  is  not  to  save  the  home  from  the  hammer  only,  that  she 
is  accorded  this  right ;  it  is  also  to  save  it  from  the  husband's 
selling  it  from  any  motive,  wise  or  unwise.  Provident  hus- 
bands who  can  sell  to  advantage  are  not  excepted  from  this 


NO    SALE    BY    INSOLVENT   DEBTOR.  4.S3 

provision  relative  to  owners  any  more  tlian  indiscreet,  drunken 
and  j)rofiigate  ones  are  excepted.  Husbands  must  convince 
their  wives  that  the  sale  would  be  good  for  the  family,  and 
thus  induce  them  to  join  in  the  conveyance.  The  law  pur- 
posely makes  the  sale  of  the  exempt  home  difficult  in  order  to 
conserve  it,  while  it  does  not  interdict  alienation  absolutely,  as 
there  is  likely  to  be  good  reason  for  selling  when  two  married 
beneficiai'ies  concur  in  the  act. 

The  restraint  upon  the  owner,  for  these  reasons,  is  suffi- 
ciently presented  in  the  dissenting  opinion  of  the  case,  to 
which  the  reader's  attention  is  directed.  The  decision  will 
speak  for  itself;  it  is  law  in  its  own  state;  whether  the  rea- 
sons which  underlie  it  will  commend  it  to  the  profession  be- 
yond that  state  was  a  proper  subject  for  inquiry.  In  justice 
to  it,  the  cases  cited  and  discussed  therein,  in  addition  to  those 
above  cited  here,  should  be  presented.^ 

The  conclusion  of  the  court  is  that  a  solvent  owner  has  no 
exempt  homestead  which  he  is  restrained  from  selling  by  his 
sole  deed ;  that  his  residence,  like  all  his  other  realt_^  may  be 
freely  alienated  by  himself  alone;  that  it  does  not  differ  from 
his  other  lands  in  this  respect;  that  the  constitution  merely 
gives  him  the  right  to  claim  homestead  in  case  he  should  be- 
come involved  in  debt ;  that  then  he  may  select  a  thousand 
dollars'  worth  of  realty  as  exempt,  or  have  it  allotted  to  him 
by  the  officer  in  charge  of  the  execution,  or  by  the  court ;  that 
what  he  has  thus  selected  or  has  had  allotted  becomes  in- 
alienable without  the  assent  of  his  wife,  and  that  what  he 
sells  alone  while  indebted  is  liable  to  subsequent  homestead 
claim  as  it  would  be  to  the  wife's  dower.  While  this  view  of 
homestead  may  seem  different  from  the  prevalent  doctrine,  it 
must  be  respected  as  the  law  of  the  state,  construed  by  a 
court  whose  opinions  are  always  learned  and  exhaustive. 

In  some  respects  the  doctrine  is  rather  against  commerce 
andj»?^.s'  disponendi  than  favorable.  Persons  dealing  with  the 
seller  of  lands  cannot  always  know  whether  he  is  in  such  a 

'  Cruiiimen  v.  Bennett,  68  N.  C.  494 ;  93  N.  C.  163 ;  Gilmore  v.  Bright,  101 

Mayho  v.  Gotten,  69  N.  C.  389 ;  Hager  N.  C.  383 ;  Lee  v.  Mosely,  101  N.  C. 

V.    Nixon,   69  N.   C.    108;    Bruce  v.  311  (cited  in  Hughes  v.  Hodges,  102 

Strickland,  81  N.  C.  367 ;  Sutton  v.  N.  C.  336). 
Askew,  66  N.  C.  173;  Arnold  v.  Estis, 


484:  SALE,   WITH    HOMESTEAD    USE    RESERVED. 

state  of  indebtedness  as  to  preclude  his  right  to  give  full  title. 
They  have  no  notice  by  record.  He  may  seem  to  be  solvent 
and  flourishing,  yet  be  financially  *^  extremis.  Is  not  the  rule 
of  the  other  states  better?  Is  it  not  more  conducive  to  the 
interests  of  commerce  and  the  free  disposition  of  property  to 
have  the  limited  home  property  exempt  and  inalienable  by  the 
husband  alone,  while  he  may  freely  sell  or  mortgage  all  the 
rest  of  his  realty,  with  notice  to  the  public  of  the  reservation? 
It  would  seem,  from  the  exceptional  doctrine  laid  down, 
that  not  only  the  occupied  dwelling  or  ground  constituting 
the  debtor's  family  residence,  but  any  other  land  of  his,  is  sus- 
ceptible of  being  allotted  to  him  as  exempt  when  execution  is 
pending;  that  he  may  then  "select"  his  homestead.  This 
greatly  adds  to  the  uncertainty  of  the  public  as  to  what  lands 
may  be  contracted  for  without  jeopardy,  since  it  cannot  be 
well  known  whether  the  seller  has  yet  come  into  that  "  con- 
dition "  of  impecuniosity  which  will  enable  him  to  become  a 
beneficiary  of  the  homestead  law. 

§  7.  Sale  by  Husband  and  Wife. 

In  statutes  containing  the  clause  that  the  owner  shall  not 
alien  or  mortgage  the  homestead  (meaning  the  prescribed 
exempt  quantum  of  realty),  without  his  wife's  joinder  or 
assent,  the  general  rule  is  that  any  alienation  of  the  fee 
by  both,  which  is  silent  as  to  reservation  or  release  of  the 
right  of  use,  conveys  the  entire  right,  title  and  interest,^  so 
that  the  grantee  is  entitled  to  immediate  possession,  and  may 
oust  the  occupying  grantors.  Express  reservation  of  the 
right  of  use,  or  of  life  estate,  or  of  anything  excepted  from 
such  conveyance,  is  necessary  if  anything  is  to  be  retained  by 
the  grantors,  as  a  general  rule,  in  most  of  the  states. 

No  doubt  married  grantors  acting  together,  or  any  unmar- 
ried grantor,  may  thus  convey.  And,  after  life  estate  has  been 
reserved,  they  may  sell  that  with  reservation  of  the  right  of 
use  for  a  term  of  years  within  their  lives.  And  after  that, 
they  may  sell  their  right  to  this  term,  retaining  leasehold  only, 
and  yet  have  exemption  right  in  that.     Were  they  to  sell  the 

1  Weigeman  v,  Marsot,  13  Mo.  App.  Kendall  v.  Powers,  96  Mo.  142 ; 
576 ;  Holland  v.  Kreider,  86  Mo.  59 ;     Waterman  v.  Baldwin,  68  la.  255. 


8AI.E    BV     UL.S15AND    AM)    WIFE.  485 

fee,  with  express  reservation  of  life  estate,  and  then  abandon 
the  premises,  what  would  be  the  effect?  Creditors  could  pro- 
ceed against  the  life  interest:  for  the  holder  of  the  fee  could 
not  complain,  since  he  would  have  no  right  to  what  he  had 
not  bought;  and  the  grantors  could  not  complain,  since  they 
would  have  given  up  their  homestead  protection. 

Married  owners  cannot  thus  sell  the  fee  with  reservation  of 
such  less  title  as  would  preserve  the  home  for  the  family  for 
a  period,  where  the  law  invests  their  children  with  such  "  es- 
tate of  homestead  "  present  or  prospective  as  to  render  such 
dispositions  as  those  above  mentioned  inconsistent  with  such 
right;  especially,  when  assent  by  the  owner  to  such  provisions 
is  inferable  from  the  act  of  homestead  dedication. 

"  The  homestead  of  a  married  person  cannot  be  conveyed 
or  incumbered  unless  the  instrument  by  which  it  is  conveyed 
or  incumbered  is  executed  and  acknowledged  by  both  husband 
and  wife."  ^ 

This  section  is  entirely  free  from  ambiguity  unless  the  w^ord 
homestead  is  liable  to  be  taken  for  the  mere  right  of  family 
occupancy  instead  of  the  exempt  realty.  Such  misapplication 
is  precluded  by  the  decisions  upon  this  statutory  restraint. 
They  treat  the  word  in  its  palpable  sense,  as  meaning  the 
property  itself  which  is  exempt  as  the  family  residence  within 
the  monetary  restriction  fixed  by  another  section  of  the  stat- 
ute. And  it  matters  not  whether  the  physical,  tangible, 
house-and-land  homestead  be  owned  by  one  spouse  or  by  both ; 
whether  it  is  the  husband's  property  or  the  wife's ;  whether  it 
is  community  or  separate  property,  both  must  unite  in  a  joint 
deed  to  convey  or  mortgage  it.^   Separate  deeds  are  insufficient.' 

Under  the  section  given,  and  the  rest  of  the  statute,  there 
is  nothing  to  authorize  the  husband  alone  to  alienate  the 
homestead,  though  the  title  be  wholly  in  himself,  and  though 
he  reserved,  for  himself  and  wife,  life  estate  therein.  Under 
a  former  statute,  it  seems  that  the  rule  was  different.*  If  the 
property  occupied  as  a  home  be  worth  more  than  the  exempt 

1  Civil  Code  of  California,  §  1342.  Clarkin  v.  Lewis,  20  Cal.  634 ;  Scars 

^Building  Ass'n   v.   Chalmers,   75  v.    Dixon,    33   Cal.    266;    Gleason  v. 

Cal.  332 ;     Flege  v.  Harvey,  47  Cal.  Spray,  81  Cal.  217. 

371;    Barber  v.   Babel,   36  Cal.    11;  3  Poole  v.  Gerard,  6  Cal.  72. 

Ides   v.    De   Diablar,    12    Cal.    827;  ^Gee  v.  Moore,  14  Cal.  472;  Bow- 


480  SALK,   WITH     IIOMESTKAD    USE    RESERVED. 

value,  the  excess  has  been  held  not  subject  to  the  inhibition 
relative  to  mortgage  by  the  husband  alone.' 

It  has  been  held  that  the  owner  of  a  homestead  (with  his 
wife's  concurrence,  if  he  be  married)  may  sell  the  fee  so  as  to 
pass  it  to  the  grantee  subject  to  the  right  of  occupancy  by  the 
grantor;  that  the  effect  of  such  sale  would  be  to  leave  the 
right  in  the  grantor  though  no  such  reservation  be  expressed 
in  the  conveyance,  and  that  on  the  termination  of  the  occu- 
pancy, the  grantee  would  become  vested  with  all  the  right, 
title  and  interest.  If  the  grantor  deed  the  fee  to  one  grantee 
without  express  reservation  of  homestead  use,  and  afterwards 
to  another  with  express  reservation  of  it,  the  first  takes  the 
land  free  from  the  homestead  right  after  its  abandonment, 
while  the  second  takes  nothing.'^ 

§  8.  Execution  Sale. 
The  supreme  court  of  the  United  States  inferred,  from  the 
doctrine  that  there  may  be  voluntary  sale  of  the  fee  of  the 
homestead  premises,  with  the  right  of  use  remaining  in  the 
grantors,  that  there  might  also  be  forced  sale  of  it  with  that 
rio'ht  reserved.'  This  was  held  in  a  case  coming  from  a  state 
holding  to  the  doctrine  of  such  voluntary  conveyance,  in  which 
many  of  the  above  cited  cases  were  adduced  and  discussed. 
It  was  said :  "  The  only  difference  between  a  conveyance  made 
by  a  judgment  debtor  who  has  a  homestead  and  by  the  sheriff 
under  a  sale  or  execution  against  his  land  is,  one  is  the  act  of 
the  party,  the  other  of  the  law  —  one  a  voluntary,  the  other 
an  involuntary  conveyance.  ...  As  the  land  can  be  sold 
by  the  owner  subject  to  the  homestead,  so  a  judgment  is  a 
lien  on  the  land  subject  to  the  homestead,  and  the  land  or  fee 
can  be  sold  under  execution  subject  to  the  homestead,  and  the 
purchaser,  as  in  the  case  of  a  deed  by  the  debtor  without 

man  v.  Norton,  16  Cal.  213 ;  Sears  v.  McDonald   v.  Crandall,  43  111.   231 ; 

Dixon,    33    Cal.    117;    McQuade    v.  Vasey  v.  Trustees,  59  111.  191;  Bliss 

Whaley,  31  Cal.  526.  v.  Clark,  39  111.  590 ;  Brown  v.  Coon, 

1  Bowman  v.  Norton,  16  Cal.  213.  36  111.  243;  Best  v.  Allen,  30  III.  30; 

But  see  Marbury  v.  Ruiz,  58  Cal.  11,  Patterson  v.  Kreig,  29111.  514;  Young 

and  Grogan  v.  Thrift,  58  Cal.  378;  v.  Graflf,  28  III.  20;  Green  v.  Marks, 

Waterloo  Turnpike  Co.   v.  Cole,  51  25  111.  221.     See  Moore  v.  Flynn,  135 

CaL  381.  111.  74. 

^Hewitt  V.  Templeton,  48  111.  367;  » Black  v.  Curran,  14  Wall.  469. 


EXECUTION    SALK.  4n7 

the  waiver,  has  the  absolute  title  when  the  homestead  riirht 
ceases." 

But  the  state  supreme  court  subsequently  pointed  out  that 
the  above  deliverance  was  rendered  under  a  misapprehension 
of  the  decisions  above  cited  and  commented  upon  by  the  fed- 
eral court.  "  This  court  has  always  made  a  marked  distinc- 
tion between  cases  of  voluntary  conveyance  by  the  homestead 
occupant  and  those  of  compulsory  conveyance  by  the  officer 
of  the  law."  Then  the  statutory  inhibition  of  forced  sale  is 
stated,  with  the  remark:  "It  is  not  the  mere  homestead  right 
of  occupancy  which  is  exempted  from  levy  and  forced  sale, 
but  it  is  the  lot  of  ground  occupied  as  a  residence."  * 

Put  the  exemption  clause  and  the  non-alienation  clause  to- 
gether: 

"  There  shall  be  exempt  from  levy  and  forced  sale  .  .  . 
the  lot  of  ground  and  buildings  thereon  occupied  as  a  res- 
idence." 

"No  release  or  waiver  of  such  exemption  shall  be  valid  un- 
less in  writing,  subscribed  by  the  householder  and  his  wife,  if 
he  have  one,  and  acknowledged  in  the  same  manner  as  con- 
veyances of  real  estate.     .     .     ."  ^ 

There  is  nothing  correlative  betw^een  the  two  provisions. 
The  lot  cannot  be  sold  by  the  sheriff,  but  it  may  be  sold  by 
the  owner  (as  any  other  property  of  his),  with  no  restraint 
upon  him  except  that  he  cannot  sell  and  transfer  it  alone  when 
he  has  a  wife.  The  proposition  that,  if  he  and  she  can  sell 
and  deliver  the  lot  with  full  title,  they  can  sell  a  less  title  and 
withhold  delivery  for  a  certain  time,  or  until  the  happening 
of  a  future  event,  is  not  antagonized  by  the  clause  exempting 
it  from  forced  sale. 

There  might  be  good  argument  on  the  naked  statute,  that 
since  waiver  of  exemption  must  be  expressed  in  the  deed,  a 
conveyance  without  such  waiver  is  a  nullity ;  but  the  decis- 
ions of  the  state  are  otherwise,  and  such  argument  would 
be  futile. 

Chief  Justice  Bleckley  lucidly  explained  that  under  the  con- 
stitution of  his  state  it  is  physical  property  which  is  exempt 
as  hoLiiestead  —  not  something  carved  out  of  it,  leaving:  the 

1  Hartwell  v.  McDonald,  69  111.  293.        '  Extracts  from  the  statute  passed 

upon  iu  Black  v.  Ciuran,  supra. 


488  SALE,  WITH    HOMESTEAD    USE    RESERVED. 

so-called  reversion  liable  to  execution.  Nothing  of  it  can  be 
forced  to  sale  during  the  homestead  duration.  Upon  its  ter- 
mination, the  j.i'operty  may  be  subject  to  execution.  The 
ownership  remains  unchanged  b}^  the  dedication  of  the  prop- 
erty to  family  use,  as  it  existed  before.  The  two  thousand 
dollars'  worth  of  realty  exempt  is  estimated  upon  the  full 
title  —  not  uj)on  the  owner's  life  estate,  or  his  and  his  wife's, 
with  the  children's  uncertain  estate  for  years  added.' 

Propert^^  was  bought  at  the  price  of  $2,500,  of  which  $1,800 
were  paid  from  a  fund  derived  from  the  sale  of  a  homestead. 
The  exemption  right  in  the  new  purchase  was  held  to  be 
eighteen  twenty-fifths  of  the  value  of  the  land.  The  remain- 
ing seven  twenty-fifths  composed  no  part  of  the  new  home- 
stead. A  mortgage  having  been  put  upon  the  whole,  it  was 
held  not  given  for  purchase-money  except  to  secure  the 
$1,800 :  so  the  mortgagee  could  proceed  against  seven  twenty- 
fifths  of  the  land  at  once,  and  eventually  against  the  rever- 
sionary interest  in  the  whole,  on  termination  of  the  home- 
stead right.^ 

"  A  homestead  exemption,  actually  and  rightly  interposed, 
has  the  effect  in  law  of  dividing  the  freehold  into  two  quasi- 
ownerships, —  the  one  for  life,  and  the  other  in  remainder. 
The  first,  or  life  ownership,  unless  forfeited  by  abandonment 
of  the  possession,  is  as  much  beyond  the  influence  of  the  ex- 
ecution as  if  it  was  the  property  of  a  stranger.  Execution  in 
the  hands  of  a  sheriff  fastens  no  lien  on  property  so  held, 
either  on  the  life  estate  or  the  remainder.  The  exemptioner 
may  sell  the  fee  of  the  property  so  held  and  vest  a  good  title 
in  the  purchaser,  to  the  same  extent,  and  with  the  same  limita- 
tions on  his  powers  of  disposition,  as  would  be  the  case  if  his 
debt  was  not  in  execution,  and  was  not  reduced  to  judgment."  ^ 

§  9.  Sale  of  the  Reversion. 

The  fee  cannot  be  sold  under  execution  so  as  to  leave  the 
homestead  unsold,  when  homestead  means  exempt  realty. 

1  Van  Horn  v.  McNeill,  79  Ga.  121 ;  v.  Smisson,  73  Ga.  423 ;  Skinner  v. 

Stephenson  v.  Eberhart,  79  Ga.  116;  Moye,  69  Ga.  476. 

Jolly  V.  Lofton,  61  Ga.  154 ;  Haslam  2  Johnson  v.  Poullain,  62  Ga,  376. 

V.  Campbell,   60  Ga.  650 ;  Heard  v.  3  Caldwell  v.  Pollak,  91  Ala.  m& ;  8 

Downing,  47  Ga,   629 ;  Moughon  v.  So.  546. 
Masterson,  59  Ga  836.    See  City  Bank 


SALE    OF    TIIK    KEVERSION.  489 

"  It  is  the  actual  homestead  and  the  dwelling  and  other 
buildings  used  therewith,  or,  in  lieu  thereof,  such  portion  of 
the  owner's  estate  as  he  may  elect  as  is  oc<yapied  hj  hiiUy  that 
is  declared  to  be  exempt  from  sale  under  execution.  .  .  . 
The  land  shall  be  set  apart  by  metes  and  hounds^  and  in  case 
of  the  debtor's  death,  leaving  a  wife  and  no  children,  the  rents 
and  profits  thereof  shall  inure  to  the  widow  during  her  widow- 
hood. .  .  .  We  cannot  perceive  how  these  provisions  can 
be  made  to  apply  to  a  mere  remainder  in  lands  dependent 
upon  a  life  estate.  .  .  .  There  can  be  no  homestead  with- 
out a  home  or  the  immediate  possibility  of  a  home  upon  the 
land  itself."  ^  But  it  is  possible  to  sell  the  exempt  realty  with 
the  privilege  of  occupancy  excepted  for  a  stated  time. 

It  was  held  that  when  the  homestead  property  was  liable 
to  execution  for  a  debt  older  than  the  exemption  law  and 
therefore  not  affected  by  it,  but  was  sold  subject  to  the  debt- 
or's homestead  right  or  privilege  (as  it  would  exist  against  a 
debt  subsequent),  the  purchaser  "  took  the  land  with  the  in- 
cumbrance ;  and,  the  whole  tract  having  been  allotted  to  the 
debtor,  only  the  reversionary  interest  passed "  to  the  pur- 
chaser.- Before  the  present  act  which  forbids  the  sale  of  a 
reversionary  interest  in  a  homestead  by  a  creditor,  he  could 
sell  to  satisfy  an  antecedent  debt,  with  the  debtor's  home- 
stead privilege  reserved  to  him ;  that  is,  he  could  sell  that  in- 
terest without  exercising  his  right  to  sell  the  whole.^ 

"  While  the  creditor  may  sell  the  entire  interest  of  the 
debtor,  passing  to  the  purchaser  the  fee-simple  and  driving 
the  debtor  from  his  home  [executing  on  antecedent  debt],  it 
is  clear  that  under  the  rule  and  reasoning  [in  the  above-cited 
cases],  if  he  permits  the  sheriff,  as  his  agent,  in  mercy  to  the 
debtor,  to  sell  '  subject  to  the  homestead  '  (allotted  or  unallot- 
ted), the  sale  is  valid  and  passes  the  reversionary  interest 
only."* 

"  The  husband's  deed,  without  the  wife's  concurrence,  is  ef- 
fectual in  passing  what  is  called  his  estate  in  reversion,  or,  in 
other  words,  the  land  itself,  subject  to  the  burden  or  incum- 

1  Murchison  v.  Plyler,  87  N.  C.  79.  202 ;  Barrett  v.  Richardson,  76  N.  C. 

2  Wyche  v.  Wyche,  85  N.  C.  96.  423. 

3  Lowdermilk  v.  Corpening,  92  N.  C.  *  Long  v.  Walker,  105  N.  C.  90, 108. 
333 ;  Corpening  v.  Kincaid,  82  N.  C. 


49()  SAr.E,  WITH  homestead  use  reserved. 

brance  of  the  homestead  as  defined  in  the  constitution,  and  the 
title  to  this  can  only  be  divested  in  the  mode  therein  pointed 
out.  .  .  ,  While  the  plaintiff  cannot  deprive  the  defendant 
of  the  possession  of  the  land,  he  is  entitled  to  a  decree  of  fore- 
closure and  sale  of  the  land  charged  with  the  homestead  in- 
cumbrance." ^ 

When  the  reversion  is  liable,  a  pending  bill  to  sell  it  may 
be  amended  so  as  to  pray  for  the  sale  of  the  whole  estate,  if  the 
exemption  has  expired  and  the  whole  has  become  susceptible 
of  execution.  "By  what  authority  can  it  be  claimed  that  the 
property  held  as  a  homestead  exemption,  which  remains  after 
the  exemption  expires,  cannot  be  subjected  to  the  debts  of  the 
householder  or  head  of  a  family?  It  is  by  law  expressly  so 
provided,"  ^  .  .  .  that  is,  it  is  provided  that  the  property 
can  be  so  subjected  under  the  state  law  cited,  after  the  exemp- 
tion has  terminated.* 

§  10.  Sale  Iby  Administrator. 

The  homestead  land  is  not  generally  an  asset  to  be  sold  by  the 
administrator;  but  it  has  been  held  to  be:  "If  necessary  to 
pay  the  debts  of  the  [deceased]  husband,  the  homestead  may 
be  sold,  subject  to  the  right  of  occupancy  by  the  widow  and 
children;  but  during  the  life  of  the  husband  it  cannot  be  sold 
by  the  creditor  unless  a  lien  is  created  upon  it  in  the  manner 
provided  by  law,  or  Avhen  it  ceases  to  be  a  homestead  by  his 
abandoning  the  premises.  Whether  the  homestead  is  regarded 
as  an  estate  or  the  mere  privilege  of  occupancy,  it  is  certain 
that  no  creditor  can  acquire  a  lien  upon  it  unless  the  right  is 
waived  in  the  manner  pointed  out  by  statute."  * 

"  When  the  right  to  the  homestead  passes  to  the  widow,  it 
may  be  sold  by  the  creditor,  subject  to  the  widow's  occu- 
pancy and  that  of  the  children  if  necessary  to  pay  the  debts 
of  the  husband. 

"  In  this  case  it  is  not  the  debt  of  the  husband  that  is  at- 
tempted to  be  made,  but  that  of  the  widow;  and,  as  far  as 
her  right  to  a  homestead  out  of  the  proceeds  of  the  sale  of  her 

1  Jenkins  v.  Bobbitt,  77  N.  C.  385.  3  Hanby  v.  Henritze.  85  Va.  177, 
See  Huglies  v.  Hodges,  102  N.  C.  236.  185. 

2  Const,  of  Virginia,  art.  11,  §§  1,5;  <  Lear  v.  Totteu,  14  Bush,  104; 
Code  (1873),  ch.  183,  §  8.  Evans  v.  Evans,  13  Busii,  587. 


SALE    BY    ADMIN  ISTKATOK.  4^»1 

husband's  real  estate  is  concerned,  it  cannot  be  reached  by  her 
own  creditors.  The  chancellor  should  therefore  invest  the 
proceeds  in  a  homestead  for  the  widow ;  and  if  the  liusband's 
creditors  are  seeking  relief,  it  can  be  sold  subject  to  the  wid- 
ow's occupancy,  and  that  of  her  infant  children,  if  any."  ^ 

In  this  extract,  the  reader  will  notice  that  the  term  home- 
stead va  used  in  different  senses.  In  the  clause, ''When  the 
right  to  the  homestead  passes  to  the  widow,"  the  meaning  is 
when  the  right  of  use  or  enjoyment  of  the  property  passes ; 
but  the  pronoun  immediately  following  stands,  not  for  that, 
but  for  the  property  used,  since  the  sale  of  it  by  a  creditor 
must  be  subject  to  the  widow's  and  children's  occupancy.  In 
the  clause,  "  as  far  as  lier  right  to  a  homestead^''  the  term  does 
not  mean  the  exempt  realty  but  her  right  in  it.  The  last 
mention  of  the  term :  "  The  chancellor  should  invest  the  pro- 
ceeds in  a  homestead^''  conveys  the  idea  of  realty ;  the  mean- 
ing is  that  he  shall  invest  in  a  dwelling,  which  creditor^  can 
sell  "  subject  to  the  widow's  occupancy." 

"  The  theory  of  the  homestead  exemption  is  that  the  debtor 
requires  a  prescribed  amount  in  value  of  land  to  be  set  apart 
for  the  support  of  himself  and  dependent  family,  but  to  ac- 
complish such  a  beneficent  object  he  must  have  the  right  to 
occupy  and  use  it;  and  hence  it  is  an  indispensable  requisite 
that  a  party  claiming  the  exemption  must  be  in  the  actual 
possession.  But  a  party  having  merely  an  interest  in  re- 
mainder is  without  any  right  to  the  possession,  and,  in  the 
meaning  of  the  law,  not  in  possession."  ^ 

An  absolute,  unconditional  estate  for  life  granted  to  the 
widow  of  a  homestead-holder  by  statute  ^  is  not  subject  to  the 
right  of  occupancy  by  his  minor  children.  She  has  the  sole 
use  and  disposition  of  her  life  estate  in  the  premises.  Free- 
hold estate,  with  right  of  occupancy,  is  given  to  the  marital 
survivor,  who  is  protected  in  its  enjoyment  as  the  united  head 
had  been  before  its  severance  by  the  death  of  one  spouse. 
The  minor  children  are  not  specially  provided  for,  but  trusted 
to  the  natural  instincts,  of  the  parent.  Abandonment  of  the 
homestead,  by  their  widowed  mother,  leaves  them  no  home- 

» McTaggert  v.  Smith,  14  Bush,  414.        » Gen.  Stat.  Minn.  (1878).  ch.  46,  §  2 ; 
«Merritield    v.   Merrifield,   82  Ky.     Holbrook   v.    Wiglitman,   31    Minn. 
526.  168. 


492  SAI>K,    WITH     HOMKSTEAL)    USE    KESP:RVKD. 

stead  rights  to  be  asserted.  They  cannot  claim  any  as  heirs 
of  their  deceased  father,  for  a  life  estate  has  intervened.^ 

Conveyance  of  such  life  estate  divests  the  homestead  right, 
so  that  the  property  itself  becomes  subject  to  forced  sale  for 
debts.  It  is  part  of  the  assets  of  the  decedent's  estate,  and  the 
fee  may  be  sold  to  pay  his  debts.  Sale  of  it  by  order  of  court 
is  not  void,  and  therefore  it  cannot  be  collaterally  assailed 
even  on  the  ground  that  the  homestead  right  had  not  ter- 
;  minated.2 

Where  it  is  provided  that  the  homestead  property  shall  be 
subject  to  the  rules  of  descent  and  disposable  by  will,  contin- 
uing exempt  from  liability  for  the  debts  of  the  decedent  par- 
ent or  those  of  his  heirs  inheriting  it ;  and  that  it  shall  be  sub- 
ject to  execution  for  the  debts  of  the  decedent  only  Avhen  he 
or  she  has  left  no  issue  and  no  marital  survivor,  the  fee  cannot 
be  treated  as  an  asset  distinguishable  from  the  land  itself. 
Whatever  may  be  said  of  the  constitutionality  of  such  a  pro- 
vision, and  of  its  equitable  character  with  reference  to  the 
rights  of  creditors,  the  homestead  cannot  be  executed  for 
debt  while  any  heir  exists,  though  the  debtor's  widow  be  dead 
and  all  his  children  of  age,  where  this  rule  prevails.^ 

An  order  of  sale,  by  a  probate  court,  of  land  on  which  the 
debtor  Avith  his  family  resides,  without  laying  off  the  quantity 
exempt  and  excepting  it  from  the  sale,  when  the  court  was 
apprised  of  the  facts  by  the  petition  filed  and  otherwise,  is  an 
absolute  nullity.*  And  the  sale  of  the  reversionary  interest, 
reserving  the  rights  of  the  widow  and  children,  is  held  void.* 

Under  a  constitutional  provision,  giving  his  widow  and 
children  the  usufruct  of  a  decedent's  homestead,^  the  probate 
court  cannot  order  the  sale  of  the  fee  of  the  homestead,  for 
the  payment  of  debts  of  the  estate,  on  petition  of  the  admin- 

'^.       '  McCarthy   v.   Van   Der  Mey,   42  Poe  v.  Hardiu,  65  N.  C.  447 ;  Wolf  v. 

Minn.  189.  Ogden,  66  III.  224 ;  Estate  of  Busse,  35 

■^Ib.  Cal.  310;  Scliadt  v.  Heppe,  45  Cal. 

SMcClain's  An.  Stat  la.,  §§  3163-  433;  Tompkins'  Estate,  12  Cal.  114; 

3185 ;  Johnson  v.  Gaylord,  41  la.  362.  James'  Estate,  23  Cal.  415.  See  Judge 


^McCloy  V.  Arnett,  47  Ark.  445 
Ruttenberg  v.  Pipes,  53  Ala,  452 
Yarboro  v.  Brewster,  38  Tex.  397 
Hamblin  t.  Warnecke,  31  Tex.  91 
Hinsdale  v.  Williams,  75  N.  C.  430 


of  Probate  v.  Simonds,  46  N.  H.  363. 

5  McCloy  V.  Arnett,  47  Ark.  445. 

6  Const,  of  Arkansas  (1874),  art  9, 
§§  6, 10. 


NO    SALE,  DURING    OCCUPANCY,  J5V    ADMINISIKATOK.  493 

istrator.^     When  the  homestead  character  has  ceased  to  exist, 
the  property  may  be  liable  for  the  debts  of  the  decedent.^ 

§  11.  No  Sale,  During  Homestead  Occupancy,  by  Ad- 
ministrator. 

An  administrator,  duly  licensed  by  a  competent  probate 
court,  sold  homestead  lands  subject  to  the  exemption  right  of 
the  decedent's  widow  and  children,  and  the  widow  became 
the  purchaser,  and  the  sale  was  confirmed  by  the  court.  She 
then  sold  the  property.  The  heirs  at  law  of  the  decedent 
sued  the  widow's  vendee  for  the  land.  Judge  Cooley,  in  de- 
ciding the  case,  says  that  at  the  time  of  the  death  of  the  house- 
holder, "his  family  were  left  residing  upon  the  land,  and  for 
that  reason  it  is  claimed  it  would  not  be  sold  for  the  payment 
of  debts.  But  the  statute  does  not  exempt  the  fee  in  the  land 
as  a  homestead;  it  exempts  the  land  only  while  it  is  occupied 
as  a  homestead  by  the  widow  and  minor  children.  Subject  to 
the  homestead  right,  therefore,  the  lands  are  assets  when 
needed  for  the  payment  of  demands  against  the  estate."  The 
widow  had  sold  out  and  left,  and  the  heirs  had  become  of  a^e 
before  the  suit  was  brought,  so  there  was  no  one  "  to  raise  the 
question  of  the  homestead."  ^  Had  there  been,  perhaps  the 
sale  would  have  proved  voidable ;  for  the  same  learned  jurist 
said  of  this  case,  when  deciding  a  later  one :  "  It  was  not  de- 
cided .  .  .  nor  was  it  necessary  to  decide  that  the  course 
adopted  [by  the  probate  court]  was  the  most  suitable."  .  .  . 
"  But  at  most  a  sale  subject  to  the  homestead  right  would  be 
voidable  on  appeal;  it  would  not  be  void."*  While  the  con- 
stitutional provisions  are  admitted  to  continue  the  exemption 
after  the  death  of  the  owner  during  the  minority  of  his  chil- 
dren or  during  the  widowhood  of  his  surviving  wife,  "  they, 
by  implication  at  least,  recognize  the  estate  of  the  late  owner 
as  having  an  interest  in  the  homestead,  which  is  assets,  and 
which  at  some  time  and  in  some  manner  must  be  subject  to  be 
applied  in  the  payment  of  debts,  but  they  do  not  indicate  the 
time  or  point  out  the  means  of  making  the  application.  jN^either 

I  Stayton  v.  Halpern,  50  Ark.  329 ;        3  Drake  v.   Kinsell,  38  Mich.  232, 
■Garibaldi  v.  Jones,  48  Ark  236.  237. 

*  Nichols  V.  Shearon,  49  Ark.  75.  *  Showers  v.  Robinson,  43  Mich.  502, 

510. 


494  SALE,  WITH    HOMESTEAD    USK    RKSEKVED. 

is  there  any  statute  that  makes  provision  for  tlie  case." '  And 
it  is  queried  whether  hinds  can  be  rightfully  sold  to  pay  the 
debts  of  a  decedent,  subject  to  the  liomestead  right.  Weight 
is  ffiven  to  the  argument  ah  inconvenienti  drawn  from  the  un- 
certainty  of  the  duration  of  the  homestead  right,  and  the  diffi- 
culty of  estimating  the  value  of  the  fee  subject  to  that  right. 
"  Selling  the  land  under  such  circumstances  is  something  like 
selling  the  contingent  interest  of  the  heir  expectant,  if  that 
were  salable,"  remarked  the  court.  The  conclusion  seems  to 
be  that  the  course  pursued  in  several  other  states  (from  which 
cases  were  cited)  ^  should  be  followed :  that  of  holding  the  fee 
inalienable  by  the  administrator  w4iile  the  homestead  right 
rests  upon  the  land.  In  the  first  case  cited  above  by  the 
court,  in  which  a  statute  providing  for  the  setting  off  of  a 
homestead  for  the  widow  of  a  deceased  debtor  was  under  con- 
struction, it  was  declared  that  the  legislature  had  not  meant 
that  the  land  set  off  to  her  should  be  sold  subject  to  her  right 
of  exemption,  because  such  a  course  would  be  destructive  to 
the  creditor's  rights,  for  purchasers  would  be  loath  to  buy 
property  subject  to  such  an  incumbrance. 

In  the  second  case  cited,  it  w^as  held  that  an  administrator 
could  not  sell  the  fee  of  homestead  land  subject  to  the  widow's 
exemption  right,  but  must  await  the  termination  of  that  right. 
In  the  third,  that  the  administrator  must  apply  for  an  order 
of  sale  soon  after  the  termination,  since  otherwise  license  then 
to  sell  may  be  refused  by  the  probate  court.  In  the  fourth, 
homestead  lands  were  treated  as  assets  of  the  estate  after  the 
homestead  right  had  expired,  but  not  liable  to  sale  by  the  ad- 
ministrator, subject  to  that  right,  before  the  expiration. 

§  12.  The  Fee  of  Homestead  Not  an  Asset  of  the  Estate. 

The  statutory  creation,  "  Every  householder  having  a  fam- 
ily shall  be  entitled  to  an  estate  of  homestead,  to  the  extent  in 
value  of  one  thousand  dollars,  in  the  farm  or  lot  of  land  and 
buildings  thereon,  owned  or  rightly  possessed,  by  lease  or 
otherwise,  and  occupied  by  him  or  her  as  a  residence;  and 
such  homestead,  and  all  right  and  title  therein,  shall  be  ex- 

1  Ih.  Wolf  V.  Ogden,  66  111.  224 ;  Taylor  v. 

2Rottenberiy  v.  Pipes,  53  Ala.  452;     Thorn,  29  O.  St.  569. 
Burson    v.    Goodspeed,   60  111.   277; 


THE    KKK    OV    HOMESTEAD    NOT     AN     ASSET.  495 

enipt,"^  .  .  .  means  that  all  the  right  and  title  which  the 
head  of  the  family  has  in  the  premises  shall  constitute  his 
homestead  and  be  exempt.  "  It  is  not  the  mere  right  of  occu- 
pancy which  is  exempted  from  forced  sale,  but  it  is  the  lot  of 
ground  occupied  as  a  residence."  ^  '*  Plainly,  no  sale  can  right- 
fully be  made  of  the  homestead  by  the  administrator  to  pay 
debts,  where  the  property  does  not  exceed  in  value  one  thou- 
sand dollars,  until  the  exenijjtion  in  favor  of  the  widow  and 
minor  children  has  in  some  mode  terminated.*  If  the  home- 
stead exceeds  that  value,  the  statute  directs  how  the  excess 
may  be  sold,  or  indivisible  property  sold  with  the  value  re- 
served from  the  proceeds.^ 

A  sale  of  homestead  premises  in  violation  of  the  statute 
may  be  set  aside  at  the  instance  of  the  occupying  beneficiary.* 
A  sale  of  it  by  an  administrator  to  pay  debts  is  void." 

"  This  court  has  never  recognized  in  any  of  its  previous 
decisions  the  doctrine,  sometimes  insisted  upon,  that  there  can 
be  a  [forced]  sale  of  the  property,  subject  to  the  right  of  oc- 
cupancy by  the  party  entitled  to  a  homestead.  Even  a  sale 
of  the  premises,  where  the  homestead  exceeds  in  value  one 
thousand  dollars,  is  invalid  unless  the  provisions  of  the  statute 
in  regard  to  assigning  a  homestead,  and  for  a  sale  where  the 
premises  are  not  susceptible  of  division,  have  been  substan- 
tially complied  with."  ^  A  homestead,  consisting  of  a  lot  of 
ground  and  improvements  not  exceeding  the  monetary  limit 
of  value,  may  be  sold  by  the  owner  (his  wife  joining  if  he  has 
one),  free  from  any  lien  of  judgment  against  him,  since  such 
lien  does  not  attach  w^iere  there  is  no  excess  of  value.^  It 
attaches  to  any  excess.^ 

'Starr  &    C.'s   An.   Stat.   Illinois,  6  Rorer  on  Jud.  Sales,  g  495. 

p.  1097,  same  as  §  1  of  Act  of  July  1,  ^  Hartman  v.  Schultz,  101  111.  437, 

1873.  Ul- 

2  Hartvvell  V.  McDonald,  69  111.  293.  SMoriarty    v.    Gait,    113    111.    373. 

3  Hartman  v.  Schultz,  101  111.437.  citing  Hartman  v.  Schultz,  101  111. 
443;  Kingman  v.  Higgins,  100  111.  437 ;  Kingman  v.  Higgins,  100  III. 
319;  Ano.  Stat.  111.,  Act  1873,  §  2.  437;  Haworth  v.  Travis,  67  111.  301 ; 

4  Merritt  v.  Merritt,  97  111.  249 ;  Hubbell  v.  Canaday.  58  111.  425 ;  Wig- 
Hotchkiss  V.  Brooks,  93  111.  392.  gins  v.  Chance,  54  III.  175;   Stubble- 

s  Conklin  v.  Foster,  57  111.  104 ;  Al-  field  v.  Graves,  50  III.  103 ;  Hume  v. 

len  V.  Hawley,  66  111.  164 :  Hubbell  v.  Gossett,  43  111.  297 ;   Bliss   v.  Clark, 

Canaday, 58  111. 425 ;  Mooers V.Dixon,  39  111.   590;  Green   v.  Marks,  25  IlL 

35  III.  208 ;  Moore  v.  Titman,  33  III.  221. 

358.  9  Eldridge  v.  Pierce,  90  III.  474. 


490  SALE,  WITH    HOMESTKAU    USE    KESEKVKD. 

If  sale  of  the  so-called  reversion  could  be  made  before  the 
expiration  of  the  "  estate  of  homestead,"  it  might  prove  of 
very  little  value.  In  illustration  it  has  been  said :  "  The 
widow  or  husband  in  whose  favor  the  homestead  is  continued 
being  young,  a  purchaser  buying  the  property  at  adminis- 
trator's sale  would  consider  the  probable  duration  of  the  es- 
tate in  such  party.  The  longer  it  would  probably  endure,  the 
less  would  be  expected  to  be  bid.  Should  the  estate  of  home- 
stead be  suddenly  terminated  by  death  or  abandonment,  the 
purchaser  could  obtain  a  perfect  title  to  the  property,  subject 
to  no  burden,  at  vastly  less  than  its  real  value,  to  the  great 
prejudice  of  the  creditors  of  the  estate  of  the  householder  or 
the  parties  entitled  to  the  remainder.  It  was  surely  never 
intended  that  property  should  be  thus  needlessly  sacrificed) 
and  any  construction  of  the  homestead  act  that  would  lead  to 
such  a  result  would  be  mischievous  in  the  highest  degree."  ^ 

§  13.  Comment. 

To  sum  up  the  law  of  sales  of  home  property  with  home- 
stead use  reserved :  the  right  of  alienation  is  perfectly  free 
before  the  exemption  quality  has  attached.  Though  the  privi- 
lege of  having  it  attach  may  already  exist,  the  right  of  aliena- 
tion everywhere  remains  untrammeled  until  that  privilege 
has  been  attached. 

In  states  where  there  must  be  something  done  by  the  owner 
(or  by  his  wife  or  her  husband),  such  as  filing  a  declaration,  or 
having  "  Homestead  "  inscribed  upon  the  title,  or  having  the 
prescribed  quantity  of  realty  set  apart,  the  property  does  not 
become  exempt  before  compliance  with  the  requisition,  and 
therefore  the  owner  is  free  to  sell. 

In  several  states  where  family  occupancy  is  deemed  notice 
of  the  homestead  character  of  the  property  occupied,  the  ex- 
emption quality  attaches  by  law  to  homes  without  any  act  on 
the  part  of  the  owner  or  his  or  her  spouse. 

The  prevalent  rule  is  that  there  is  nothing  correlative  be- 
tween exemption  and  voluntary  alienation.  The  exception  is 
that  where  an  "  estate  of  homestead  "  is  created  of  such  a  char- 
acter as  to  give  the  surviving  spouse  and  the  children  of  the 
owner  such  rights  as  are  inconsistent  with  the  owner's  power 
of  disposition,  he  has  waived  the  power  by  dedicating  his  prop- 

•  Mr.  Justice  Scott,  for  the  court,  in  Hartman  v.  Schultz,  101  III.  443. 


COMMENT.  497 

erty  to  homestead  use  and  has  thus  accepted  the  terms  of  the 
law. 

Generally  speaking,  however,  restraint  upon  voluntary  alion- 
ation  is  not  a  corollary  of  exemption.  It  is  an  independent 
inhibition.  It  is  found  in  the  homestead  statutes  sometimes 
coupled  with  the  exemption  provision  but  usually  otherwise, 
and  always  unnecessary  to  the  complement  of  that  provision 
exceptin*^  as  above  shown. 

It  was  not  thought  necessary,  in  writing  the  foregoing  sec- 
tions of  this  chapter,  to  present,  in  detail,  the  provision  of 
each  state  for  the  restraint  of  the  voluntary  alienation  of 
homesteads  —  specimens  being  considered  sufficient.  If  every 
point  of  homestead  law  were  run  through  all  the  stiites,  and 
the  judicial  deliverances  on  it  discussed,  the  result  would  be 
a  volume  as  massive  as  any  of  our  lexicons  unabridged,  and 
the  profession  would  become  bewildered  in  the  luxuriant  re- 
dundancy. Each  specimen  will  represent  its  class  as  a  sample 
speaks  for  the  cotton  bale. 

The  law  on  the  subject  may  be  summarized  thus: 

(1)  In  the  absence  of  any  restraining  clause,  the  owner  may 
convey  his  or  her  homestead,  consisting  of  the  prescribed 
quantity  of  realty,  just  as  he  or  she  may  convey  any  other 
property. 

(2)  The  common  restraint  prescribed  is  upon  married  per- 
sons, forbidding  one  spouse  to  convey  the  homestead  alone. 
Acting  together,  married  persons  may  convey  their  home 
stead  just  as  they  may  convey  any  other  property. 

(.3)  The  prohibition  of  the  husband's  selling  without  his 
wife's  joinder  does  not  imply  prohibition  of  her  selling  with- 
out his  joinder,  if  the  homestead  is  her  separate  property : 
so  she  may  freely  sell,  so  far  as  this  prohibition  is  concerned. 

(4)  The  right  to  sell  a  thing  includes  the  right  to  sell  less : 
so  any  single  owner  who  has  the  right  to  sell  his  homestead 
property,  or  any  married  couple  who  have  the  right  of  selling 
theirs  by  acting  together,. may  sell  it  with  the  right  of  occu- 
pancy reserved  for  a  stipulated  time  or  under  stipulated  con- 
ditions. And,  as  the  law  confines  homestead  to  no  particular 
title  or  ownership  if  there  be  exclusive  right  of  possession, 
the  reservation  may  be  that  of  life  estate  which  will  form 
sufficient  basis  for  homestead;  and  the  property  right  and  in- 
32 


498  SALE,  WITH    HOMESTEAD    USE    RESERVED. 

terest  may  even  be  reduced  to  lease  hold  with  the  homestead 
basis  intact. 

(5)  The  right  of  homestead  occupancy  cannot  be  sold,  with 
the  fee  of  the  property  retained,  since  that  would  leave  no 
right  of  possession  in  the  grantor,  and  therefore  no  basis  for 
homestead.     It  would  be  abandonment. 

(6)  Forced  sales  differ  from  voluntary  sales  with  respect  to 
reservations.  The  interdiction  of  forced  sales  of  homesteads 
includes  not  only  the  property,  but  everything  less :  so,  the 
fee  cannot  be  sold  with  right  of  occupancy  left  unsold ;  and 
states  which  permit  this  (of  which  specimens  are  given  above) 
are  exceptional  to  the  prevalent  homestead  system.  The  ex- 
emption of  the  homestead  is  the  exemption  of  all  the  right, 
title  and  interest  of  the  homestead  holder  therein ;  and  it  is 
found  in  the  exemption  clause  and  not  the  alienation  clause  of 
the  homestead  statute  of  each  state. 

(7)  The  homestead  realty  is  not  an  asset  of  a  decedent's  es- 
tate (leaving  the  right  of  occupancy  in  the  widow  and  chil- 
dren), except  in  states  inharmonious  with  the  prevalent  home- 
stead system. 

(8)  It  cannot  be  said  that  the  term,  widow's  homestead^  is 
generally  indicative  of  real  estate  belonging  to  a  widow ;  for 
it  is  used  in  such  different  senses  in  different  states  as  to  pre- 
clude any  generalization  here.  And  the  foregoing  seven  notes 
are  not  meant  to  apply  to  that  species  of  homestead. 

(9)  "  Estate  of  homestead,"  wherever  recognized,  has  such 
peculiarities  that  the  above  general  rules  are  not  meant  pre- 
cisely to  apply  to  it. 


I 
i 


CHAPTER  XVI. 


FRAUD. 


1.  Fraudulent  Acquisition. 

2.  Buying  with  Anotlier's  Money. 

3.  Exchanging  Goods  for  a  Home- 

stead when  They  Have  Not 
Been  Paid  for. 

4.  Fraudulent  Selection  from  Lia- 

ble Property. 

5.  The     "Policy"     to     "Secure" 

Homesteads. 

6.  Fraudulent  Conveyance  —  Cred- 

itors Disinterested. 

7.  Remote  Interests  in  Fraudulent 

Conveyances. 


§  8.  Conveyances  to  Creditors'  Prej- 
udice. 
9.  Liability  to  Creditors. 

10.  Selling  Liable  Property. 

11.  Fraudulent  Liens. 

12.  Fraudulent  Transfer  to  Wife. 

13.  Effect  of  Setting  Aside  a  Fraud- 

ulent Transfer. 

14.  Effect  of  Forfeiture,  as  to  Cred- 

itors. 

15.  Comment 


§  1.  Fraudulent  Acquisition. 

Homesteads  ought  to  be  honestly  acquired.  The  benefit  of 
exemption  is  for  those  who  have  complied  with  the  conditions 
upon  which  it  is  offered.  Ownership  under  some  species  of 
title  which  carries  with  it  the  right  of  exclusive  possession 
is  an  indispensable  condition.  Compliance  with  it  is  not  ren- 
dered unnecessary  or  dispensable  by  any  rule  of  liberal  con- 
struction. However  much  the  law  may  favor  the  home  when 
acquired,  it  never  encourages  or  excuses  the  rascally  procure- 
ment of  the  sacred  possession.  It  would  seem  superfluous  to 
say  this  —  especially  superfluous  to  prove  this  —  were  there 
no  decisions  that  seem  to  make  the  law  encourage  or  excuse 
such  procurement. 

Before  noticing  the  few  deliverances  of  that  kind,  the  reader 
will  turn  to  the  many  which  hold  honest  purchase  and  pay- 
ment for  homestead,  or  lawful  inheritance  or  other  acquisi- 
tion of  it,  essential  to  the  creation  of  the  exemption  character, 
and  therefore  necessarilv  ante-dating  the  beginning  of  any 
liberality  of  construction  as  to  that  character. 

ISTo  statute  exempts  homesteads  from  liability  to  pay  their 
purchase  price.     Some  expressly  provide  that  no  property 


500  FRAUD. 

shall  be  exempt  from  liability  "  incurred  for  the  purchase  "  of 
it.  The  grantor,  who  has  parted  with  land,  is  to  be  paid  the 
price,  without  any  spell  put  upon  the  place  by  law  to  render 
it  inviolate.  The  lender  of  money  to  pay  the  grantor  ought 
to  have  the  right  of  following  it  to  the  farm  or  town  lot 
bought  by  it,  so  that  the  homestead  holder  shall  not  have  it 
for  nothing.^ 

Where  the  statute  excepts  the  homestead  from  exemption, 
not  in  case  of  debts  contracted  in  making  the  purchase,  but 
in  that  of  debt  for  the  price  due  the  grantor,  the  opportunity 
for  fraud  in  the  acquisition  of  a  homestead  is  greatly  enlarged. 
Especially,  when  only  the  vendor's  lien  is  made  enforceable, 
while  side  obligations  (such  as  those  created  by  borrowing 
money  to  pay  the  vendor's  claim  after  title  has  passed)  are 
not  privileged  debts  against  the  property  thus  paid  for,  is  the 
field  for  fraud  much  widened.  In  such  case,  the  legislator  is 
responsible  for  the  evil  results,  and  not  the  expositor. 

"When,  however,  the  statute  leaves  the  homestead  liable  for 
all  debts  incurred  in  its  purchase  or  acquisition, —  w^hether 
they  are  supported  by  a  conventional  lien  or  not,  whether 
they  are  due  to  the  vendor  or  to  his  assignee,  whether  they 
are  directly  owing  to  the  vendor  or  w^ere  incurred  by  borrow- 
ing money  of  others  to  pay  him, —  then  the  courts  are  not 
excusable  if  they  permit  any  one  to  acquire  q,  homestead  at  the 
expense  of  another  without  his  consent. 

To  repeat  the  words  of  Chief  Justice  Jackson  (elsewhere 
quoted),  when  speaking  of  a  borrower  of  money  to  pay  for 
a  homestead :  "  Shall  he  not  pay  the  man  whose  money  got 
him  the  homestead  right  out  of  the  property,  before  he  as- 
serts and  sets  apart  right  paid  for  by  "  the  lender?  "  Justice, 
equity,  law,  common  sense,  all  demand  that  he  shall.  .  . 
The  sense  of  right  in  the  heart  of  an  honest  man,  when  a 
swindler  would  cheat  him,  nine  times  out  of  ten  is  the  law  of 
the  land."  And  again,  in  the  same  case,  the  righteously  in- 
dignant judge  says  that  to  permit  the  debtor  to  perpetuate 

1  Williams  v.  Jones,  100  111.  362 ;  Ky.  148 ;  Thompson  v.  Sheppard,  85 

White  V.  Wheelan,  71  Ga.  533 ;  Zun-  Ala.    619 ;     Durham   v.   Bostick,   72 

dell  V.  Gess,  73  Tex.  144 ;  Bentley  v.  N.  C.  356.     These,  and   many  other 

Jordan,  3  Lea,  353;  Parrottv.Kinnpf,  cases,   are  cited  in  the  chapter  on 

103  111.  427 ;  Purcell  v,  Dittman,  81  Liability  for  Purchase-money. 


FRAUDULENT   ACQUISITION.  501 

such  a  fraud  as  to  make  a  homestead  out  of  money  which  he 
beg<^ed  the  lender  to  lend,  ''without  ])a3'ing  a  dollar  of  it 
back  to  him,  would  he  to  sink  law  and  eiiidtij  into  a  dough  of 
iniquity  and  putridity  nauseating  to  every  sense  of  moral 
purity^  And  again:  "While  homestead  rights  are  consti- 
tutional and  favorites  of  our  law,  fraud  is  not^  ^ 

Contrast  this  decision  with  the  following:  A  purchaser 
bouglit  a  house,  and  gave  his  note  for  the  price,  which  note 
was  purchased  by  a  third  person  at  the  maker's  request.  Judg- 
ment was  obtained  on  the  note,  but  the  court  held  the  house 
exem])t.  The  debtor's  wife  had  become  the  owner,  but  the 
case  did  not  turn  on  that  circumstance;  for  it  was  said  in  the 
decision  that  had  she  been  the  maker  of  the  note,  the  house 
would  have  been  exempt ;  that,  admitting  the  acts  of  husband 
and  wife  to  have  been  fraudulent,  the  holder  could  not  make 
his  money  out  of  the  property  bought  with  his  money .^  There 
seems  to  bo  nothing  in  the  statute  under  which  this  case  was 
decided  to  justify  a  conclusion  different  from  that  reached  in 
the  preceding  case.' 

AVliere  homestead  protection  originated  it  is  now  said: 
"  The  beneficent  provisions  of  our  homestead  laws  have  been 
the  occasion  of  much  enthusiastic  comment,  and  of  not  a  few 
rhetorical  flourishes  in  the  opinions  of  this  court.  That  it  is 
politic  and  wise  is  proved  by  the  tendency  of  the  more  recent 
legislation  on  the  subject  throughout  the  states  of  the  Union. 
But  while  this  court  has  ever  construed,  and  will  continue  to 
construe,  our  exemption  laws  liberally  in  favor  of  those  they 
were  intended  to  protect,  we  cannot  sanction  an  interpreta- 
tion which  would  make  them  a  mere  cover  for  shielding  prop- 
erty from  being  subjected  to  the  ])ayment  of  honest  debts."  * 
And  then  the  court  showed  how  "  a  wise  and  humane  provis- 
ion of  our  organic  law  is  made  an  instrument  of  wrong,  and  a 
reproach  among  honest  men,"  by  claimants  of  the  benefit  who 
do  not  desire  to  use  their  lots  as  a  part  of  their  homes  or  the 
direct  comfort  and  convenience  of  their  families,  but  merely 

1  Bugg  V.  Russell.  75  Ga.  837.  *  Blum  v.  Rogers,  78  Tex,  530 ;  15 

2  Gruhn  V.  Richardson,  128  III.  178.     S.  W.  115;  Oppenheimer  v.  Fritter, 
» Starr  &  C.'s  Stat.  Ill,  p.   1097  et    79  Tex.  99;  14  S.  W.  1051. 

seq.;  Const.  Ga.,  art.  9,  g^  1,  2.     See 
cases  cited  §  5,  ch.XI,  ante. 


502  FRAUD. 

to  save  them  from  forced  sale,  by  building  houses  to  be  let  to 
tenants,  "  drawing  water  from  them  "  occasionally,  "  sowing 
the  ground  in  turnips ;"  and  it  might  have  been  added  (draw- 
ing upon  instances  in  other  states),  planting  a  tree  or  two, 
digging  a  well,  dropping  building  material  upon  the  ground 
or  building  a  fence  around  it.  But  the  building  of  a  stable  is 
deemed  better  than  "sowing  the  ground  with  turnips,"  as  cre- 
ating a  homestead.'  Building  corrals  for  stock,  buying  lum- 
ber, purchasing  wire  for  fencing,  and  planting  —  not  turnips, 
but  alfalfa  —  were  held  suflBcient  to  show  intent  of  occu- 
pancy and  to  give  present  exemption.'-^ 

The  liberality  of  the  construction  given  to  the  exemption 
features  of  the  law  sometimes  tends  to  the  favoring  of  claims 
not  well  founded.     The  danger  has  been  thus  pointed  out : 

"  In  avoiding  the  Scylla  of  oppression,  we  must  guard  against 
the  Charybdis  of  dishonesty.  ...  As  the  act  to  prevent 
frauds  and  perjuries  was  once  said  to  be  construed  in  such  a 
way  and  manner  as  to  promote  fraud,  so  the  homestead  pro- 
vision of  our  constitution  is  liable  to  be  so  construed  as  to  take 
away  the  homesteads  of  honest  creditors."  ^ 

§  2.  Buying  with  Another's  Money. 

The  purchaser  of  a  homestead  paid  for  it  by  drafts  upon 
his  bank  account  in  excess  of  his  deposits.  Afterwards  his 
deposits  made  a  balance  in  his  favor,  though  the  money  de- 
posited was  not  his  own,  but  a  trust  fund.  On  settlement,  he 
was  found  indebted  to  the  bank,  and  he  gave  his  note  for  the 
indebtedness.  This  note  was  assigned  by  the  bank  to  its  presi- 
dent, who  obtained  judgment  thereon,  and  levied  upon  the 
homestead.  The  debtor  enjoined  —  and  the  question  was 
whetjier  the  note  represented  the  purchase-money  with  which 
he  had  obtained  his  homestead.  The  court  perpetuated  the 
injunction  on  the  ground  that  between  the  time  he  overdrew 
Jiis  account  to  pay  for  the  property  and  the  time  when  he 
gave  his  note,  there  had  be-^n  a  balance  in  his  favor.^  Had  he 
regularly  obtained  a  loan  of  the  bank  and  bought  his  home- 

1  Ellerman  v.  Wurz  (Tex.),  14  S.  W.        8  Walker  v.  Darst,  31  Tex.  683. 
333.  <  Hale  v.  Richards,  80  la.  164. 

2  White  V.   Wadlington  (Tex.),    14 
S.  W.  296. 


BUYING    WITH    ANOTUEIi's    MONEY.  503 

stead  with  it,  the  debt  would  not  have  been  paid  by  deposit- 
ing money,  to  his  own  account,  sullicient  to  make  the  payment, 
if  he  gave  no  check  to  the  bank  for  that  purpose.  Leaving 
out  of  the  question  the  fact  that  the  deposit  was  of  trust 
funds  (which,  though  held  by  him  in  a  fiduciary  capacity,  were 
thus  mixed  with  his  own),  we  may  assume  that  the  deposit 
was  that  of  his  own  money.  If  a  settlement  had  then  been 
made,  when  the  balance  of  his  account  was  in  his  favor,  and 
he  had  then  paid  the  loan  by  giving  the  bank  a  check  on  his 
account,  there  would  have  been  no  question  that  the  note 
given  on  the  settlement  actually  made,  which  was  transferred 
to  the  president  and  sued  upon  by  him,  was  not  for  the  pur- 
chase-money of  his  homestead. 

That  the  deposit  which  covered  the  deficit  was  not  in  pay- 
ment of  the  loan  is  clear  from  the  fact  that  he  retained  the 
right  of  checking  upon  it,  and  did  check  upon  it  and  thus 
withdrew  the  money  that  belonged  to  the  trust  fund.  Con- 
sidered as  a  loan,  the  debt  was  unpaid ;  and  the  note  given  on 
settlement  was  for  purchase-money,  and  the  homestead  was 
liable,  and  the  injunction  wrong. 

Could  he  do,  by  indirection,  what  could  not  be  done  directly? 
Especially,  Avhile  seeking  to  restrain  a  judgment  by  an  equity 
remedy,  could  he  deny  that  he  had  obtained  a  loan  by  assert- 
ing that  he,  while  general  manager  of  the  bank,  took  the 
money  without  giving  the  bank  his  note,  or  gave  the  money 
in  his  official  capacity  to  himself  in  his  private  capacity?  He 
ought  not  to  be  heard  to  say  so.  The  seeker  of  equity  must 
do  equity. 

The  court  discussed  banking,  and  showed  that  when  a  de- 
positor's account  is  in  his  favor  the  bank  owes  him ;  and  when 
it  is  against  him,  he  owes  the  bank.  This  is  true  in  a  sense; 
but  mere  deposits  are  not  understood  to  be  payments  of  debts 
to  a  bank  unless  checks  upon  them  be  drawn  in  favor  of  the 
bank.  An  overdraft  is  usually  met  by  a  deposit  only :  but 
an  overdraft  of  a  large  amount  purposely  made  by  one  in 
control  of  the  bank  itself,  and  used  to  purchase  real  estate, 
creates  a  debt  to  the  bank  which  cannot  be  said  to  be  liqui- 
dated by  a  temporary  deposit  which  is  withdrawn  before  set- 
tlement. 

Viewing  the  whole  transaction  in  the  concrete,  what  do  we 


504  FKAUD. 

find?  A  liomestead  has  been  bought  with  the  l>anl<'s  money, 
and  the  purchaser  holds  the  real  estate,  and  the  banlc  is  un- 
paid, and  a  judgment  for  the  debt  is  enjoined  from  execution 
against  the  homestead  thus  obtained. 

The  court  said  (with  respect  to  the  general  manager's  using 
the  bank's  money,  without  its  consent,  to  buy  the  homestead) 
that,  if  he  consequently  must  be  regarded  as  holding  it  in  trust 
for  the  bank,  his  trust  was  discharged  when  he  met  his  over- 
drafts by  deposit  of  the  school  fund.  But  if  right  of  prop- 
erty had  vested  equitably  in  the  bank  upon  the  purchase  of 
the  homestead  with  its  funds,  how  was  that  right  divested  by 
the  trustee's  deposit,  without  any  settlement?  Certainly, 
if  the  bank  meanwhile  had  availed  itself  of  the  right  to  claim 
the  property  by  its  agent,  the  subsequent  deposit  would  have 
been  no  discharge  of  his  assumed  trust,  in  the  absence  of  any 
agreement  to  that  effect. 

•  It  is  difficult  to  infer  from  the  statute  of  the  state  where 
the  above  noticed  case  was  tried,  that  the  legislator  meant 
that  purchase-money  should  not  be  collected  from  the  home- 
stead under  such  circumstances.  Neither  the  letter  nor  the 
spirit  seems  to  favor  the  holding  of  a  homestead  with  im- 
punity against  its  unpaid  price.  The  statute  is  as  p-lain  in 
excepting  from  exemption  when  the  judgment  is  for  purchase- 
money,  as  the  statutes  of  any  state.  The  general  rule  is  that 
homesteads  are  liable  for  purchase-money.  The  liability  can- 
not be  avoided  by  complications  and  the  substitution  of  one 
debt  for  another  while  the  purchase-money  really  remains  un- 
paid.    Dolus  circuitu  nori  j^urgatur. 

§  3.  Exchanging  Goods  for  a  Homestead  when  They 
Have  Not  Been  Paid  for. 

The  humane  provisions  for  the  protection  of  families  are 
liable  to  great  abuse.  The  establishment  of  a  homestead  at 
the  expense  of  an  innocent  neighbor,  though  managed  so  as 
to  escape  the  charge  of  legal  fraud,  is  wrong-doing  of  the  most 
reprehensible  character.  To  borrow  money  and  invest  it  in  a 
home,  and  then  defeat  the  lender's  claim  for  reimbursement 
by  pleading  the  homestead  exemption,  would  be  so  manifestly 
unjust  as  to  be  condemned  by  all  men  of  integrity.  To  pur- 
chase goods  on  credit ;  exchange  those  goods  for  a  farm,  and 


EXCHANGING    GOODS    FOR    A    HOMESTEAD,  ETC.  505 

hold  tlie  farm  af^ainst  tlio  vendors  of  the  goods  as  an  exempt 
homestead,  is  quite  as  bad.  But  what  are  tlie  courts  to  do  in 
such  cases?  A  mortgage  for  the  purchase-money  may  be  fore- 
closed against  the  homestead,  but  if  the  money  is  one  or  two 
removes  from  the  immediate  purchasing  transaction,  and  there 
is  no  law  for  the  enforcement  of  the  just  debt,  owed  by  the 
householder,  against  that  which  the  creditor  virtually  sold 
him,  but,  on  the  contrary,  a  statute  protecting  him  in  his  un- 
conscionable claim  of  exemj)tion,  what  can  courts  do  but  ex- 
pound and  enforce  the  law  as  they  find  it,  and  give  the  claim- 
ant the  homestead?^ 

The  law  allows  it,  and  the  court  awards  it 

"  We  know  of  no  rule  of  law  in  this  state,"  said  the  supreme 
court  deciding  the  case  last  cited,  "  that  deprives  a  person, 
whose  indebtedness  may  be  equal  to  or  exceeds  his  resources, 
from  taking  a  part  of  his  property  to  purchase  a  homestead. 
This  is  not  a  fraud  upon  creditors.  It  is  not  a  concealment 
of  his  pro})erty.  He  merely  pnts  the  property  into  a  shape  in 
which  it  will  be  the  subject  of  beneficial  provision  for  himself 
and  his  family.  .  .  ."  -  If  the  law  connives  at  such  moral 
fraud,  the  court  has  merely  carried  out  what  it  understood 
the  law  to  be.  Is  it  indeed  not  reprehensible  to  acquire  a 
homestead  at  the  expense  of  others  without  their  consent?  Is 
it  not  to  the  prejudice  of  creditors  when  property  already  lia- 
ble for  their  debts  is  converted  suddenly  into  property  not 
liable,  for  the  admitted  purpose  of  keeping  them  out  of  their 
dues? 

The  homestead  which  the  law  protects  from  creditors  is 
the  family  residence,  owned  and  occupied  by  the  beneficiary 
with  his  dependents.  The  debts  from  which  it  is  exempt  are 
the  ordinary  ones  created  after  notice  to  the  world  that  the 
family  residence  thus  owned  and  occupied  is  not  liable  for 

1  Meigs  V.  Dibble,  73  Mich.  101,  in  which  the  turning  of  a  whole  stock 

which  it  seems  that  a  stock  of  goods  of  goods  into  a  homestead  was  held 

had  been  bought  on  credit,  and  then  fraudulent  as  against  the  vendors  of 

sold  or  exchanged  for  forty  acres  of  the  goods,  who  liad  not  been  paid, 

land;  and  that  one  of  the  creditors  In  this  case  the  court  contended  that 

for  the  goods  was  defeated  on  execu-  there   was    no    contemplated    fraud 

tion  bj'  the  setting  up  of  the  land  as  when  the  goods  were  purchased  ;  in 

an  exempt  homestead.    But  the  court  that  case,  it  was  thought  otherwise, 

drew  distinction  between  this  case  and  2  7^, 
that  of  Pratt  v.  Burr,  5  Biss.  36,  in 


506  FRAUD. 

those  debts.  If  converting  liable  property  into  non-liable 
proi)erty  to  defeat  creditors  from  collecting  debts  created  on 
the  faith  of  it  is  not  a  fraudulent  concealment  of  it,  it  yet  is 
the  putting  of  liable  property  out  of  their  reach.  It  is  the 
debtor's  taking  for  himself  and  his  what  ought,  in  all  simple 
honesty,  to  go  to  others.  Doubtless,  however,  the  court  con- 
sidered the  creditors  notified  by  the  passage  of  the  homestead 
law. 

We  must  always  respect  the  decision  of  a  capable  and  con- 
scientious court,  whether  or  not  we  think  it  ought  to  be  drawn 
into  precedent.  lies  judicata  facit  ex  alio  nigrum^  ex  curvo 
rectum,  ex  recto  curvuin. 

It  is  a  maxim  of  the  civilians  that  "  the  law  wrongs  no  man 
but  renders  to  every  one  his  due: "  a  sentiment  almost  equiv- 
alent to  the  Golden  Eule.  Juridical  ethics,  both  in  the  civil 
and  the  common  law,  is  consonant  with  the  purest  morality. 
Statutory  law  should  conform  to  it  as  nearly  as  possible,  by 
enactment  and  construction. 

.  In  a  case  very  similar  to  the  one  last  cited,  in  which  goods, 
not  paid  for,  were  exchanged  for  a  homestead,  and  then  ex- 
emption claimed  for  the  latter  against  the  vendor  of  the 
goods,  the  judgment  was  just  the  reverse.  The  debtor's  course 
was  held  fraudulent.  The  fraud  was  to  the  prejudice  of  the 
creditor.  The  creditor's  goods  had  gone  to  buy  the  property 
claimed  as  exem])t.  It  was  held  that  the  claim  was  uncon- 
scionable, and  that  the  homestead  claimant  may  cut  himself 
off  from  all  ])rivileges  under  a  homestead  statute  by  his  own 
fraud  and  crookedness.  No  protection  is  extended  to  one  who 
takes  property  in  exchange  of  goods  for  which  he  owes,  and 
who  thus  seeks  to  defraud  his  creditors.^ 

The  law  that  "  a  homestead  shall  not  be  subject  to  forced 
sale  on  execution  or  any  other  final  process  from  a  court "  is 
held  to  have  the  same  force  and  effect  as  though  thus  ex- 
pressed :  "  A  homestead  shall  be  exempt  from  sale  on  execu- 
tion or  any  other  final  process."  But  the  right  to  waive  the 
exemption  privilege  by  contract,  surrender  to  the  ^ofiicer  in 
charge  of  a  writ,  or  neglect  to  claim  before  sale ;  and  the  lia- 
bility to  forfeit  the  privilege  by  fraud,  is  recognized.  Con- 
troverting the  opposite  view,  it  was  said  by  the  court  making 

1  Pratt  V.  Burr,  5  Biss.  36. 


EXCHANGING  GOODS  FOR  A  HOMESTEAD,  ETC.       507 

the  exposition  above  stated :  ''  If  such  a  construction  of  the 
law  as  is  contended  for  in  this  case  should  ])revail,  its  title 
should  be  read,  'An  act  for  preventing  the  payment  of  honest 
debts,  and  for  the  promotion  of  frauds  upon  creditors  by 
debtors.'  "  ^ 

The  facts  on  which  this  exposition  was  made  were  stated 
thus  briefly  by  the  court  (after  having  been  given  in  detail  in 
the  statement  of  the  case) :  "  The  defendants  were  merchants, 
in  possession  of  a  stock  of  goods,  and  in  that  character,  and 
under  those  circumstances,  replenished  their  stock  by  the  pur- 
chase of  goods  of  the  plaintiffs  on  credit.  After  acquiring 
possession  of  the  goods  so  purchased,  they  transferred  their 
whole  stock  in  fraud  of  their  creditors,  and  took,  in  exchange 
therefor,  these  premises  [the  homestead].  The  mere  state- 
ment of  the  facts  decides  this  case  in  the  conscience  of  every 
honest  man :  that  neither  in  law  nor  justice  the  exemption 
should  be  allowed.  The  defendants  cannot  expect  the  court 
to  assist  them  in  consummating  the  intended  fraud."  - 

A  bill  was  filed  against  a  man  and  wife  (who  did  business  as 
Argo  &  Co.,  she  being  the  company)  to  set  aside  a  sale  of 
goods  as  fraudulent.  Then,  under  an  amended  bill,  three 
lots  were  attached,  which  belonged  to  her.  The  firm  an- 
swered, admitted  the  correctness  of  the  account,  claimed  that 
the  wife  alone  owned  the  business  carried  on  in  the  firm  name, 
and  that  she  was  entitled  to  homestead  in  the  lots  attached. 

There  was  judgment  for  the  complainant  and  an  order  for 
the  sale  of  the  lots.  In  aflBrming  the  chancellor's  decree,  the 
supreme  court  said : 

"  The  law  provides  for  the  exemption  of  a  homestead  to 
each  head  of  a  family.     In  law,  thouyh  it  may  he  otherwise  in 

1  Judge  Miller  iu  Fratt  v.  Burr,  5  11  Harris  (Pa.),  93;  Brackett  v.  Wat- 

Biss.  36,  citing  on  the  point  that  ex-  kins,  21  Wend.  (N.  Y.)  08. 

emption  laws  are  grants  of  personal  2  Piatt    v.   Burr,  5   Biss.  36,  SS-D: 

privileges  to  debtors  which  may  be  Miller,  J.     The  spirit  of   article    15, 

waived  or  forfeited  as  above  stated  :  section  9,  of  the  constitution  of  Kan- 

Hewes  v.  Parkman,  20  Pick.  (Mass.)  sas  was  declared  to  be  that  no  person 

90;  McKinuey   v.   Reader,  6  Watts  shall  enjoy  property  as  a  homestead, 

(Pa.),  34 ;  Hutchinson  v.  Campbell,  1  or  enjoy  improvements  made  upon 

Casey  (Pa.),  273 :  Lauck's  Appeal,  12  it,  against  the  just  claim  of  one  who 

Harris  (Pa.),  426 ;  Hammer  v.  Freese,  procui-ed   the   property   or    the   im- 

7  Harris  (Pa,),  255 ;  Bo wyer's  Appeal,  provements    for     him.      Nichols    v. 

9  Harris  (Pa.),  210;  Case  v,  Dunmore,  Overbacker,  16  Kas.  54. 


508  FRAUD. 

faot^  the  husband  is  the  head  of  the  family.  She  [the  wife] 
is  not  therefore  entitled  to  homestead  out  of  her  own  lands, 
nor,  as  contended  in  argument,  is  the  husband  entitled  to 
homestead  in  lands  belonging  to  the  wife." 

But  the  ordered  sale  was  modified  so  as  to  be  subject  to 
equity  of  redemption  —  the  bill  not  having  prayed  to  have  it 
barred.' 

§  4.  rraiiduleiit  Selection  from  Liable  Property. 

The  doctrine  that  homestead  may  be  selected,  to  defeat 
creditors,  from  property  liable  for  debts  due  them,  has  been 
so  pointedly  laid  down  that  it  must  be  stated  here,  however 
antagonistic  to  just  principles  it  may  appear.  The  profession 
cannot  disregard  what  rests  on  the  principle  of  stare  decisis^ 
even  though  the  courts,  in  the  exposition  of  statutes,  admit 
that  princi]jles  of  equity  have  no  control.  The  doctrine  has 
been  carried  so  far  as  the  holding  that  creditors  who  have 
had  no  notice,  who  have  trusted  their  debtor  on  his  assurance 
that  certain  described  property  was  amenable  for  the  debt, 
may  be  defeated  by  the  subsequent  selection  of  that  same 
property  as  exempt.  It  is  more  agreeable  to  the  writer  to 
state  the  doctrine  by  excerpts  from  the  reports. 

"  An  insolvent  debtor,  in  contemplation  of  insolvency, 
moved  into  and  made  his  dwelling  in  property  .  .  .  which 
constituted  a  large  part  of  his  assets,  for  the  express  purpose 
of  holding  it  as  a  homestead  and  thereby  withdrawing  it  from 
the  reach  of  his  creditors.  .  .  .  In  a  financial  statement 
made  to  the  defendants,  upon  the  faith  of  which  they  gave 
him  credit  for  the  claims  upon  which  their  judgments  against 
him  were  recovered,  he  had  included  as  part  of  his  assets  the 
property"  subsequently  set  up  as  his  homestead.  "It  is 
claimed  that  the  first  would  render  the  claim  of  homestead 
fraudulent  as  to  creditors,  and  that  the  second  would  estop 
him  from  claiming  the  exemption  as  against  the  defendants. 
There  is  noihing  in  either  point.  A  debtor  in  securing  a  home- 
stead for  himself  and  family,  by  purchasing  a  house  with  non- 
exempt  assets,  or  by  moving  into  a  house  which  he  alreatly 
owns,  takes  nothing  from  his  creditors  which  the  law  secures 
to  them,  or  in  which  they  have  any  vested  right,     lie  merely 

1  Turner  v.  Argo  (Teun.),  14  S.  W.  930. 


FRAUDULENT    SELECTION    FROM    LIAIILE    PROPERTY.  509 

puts  his  property  into  a  sliapc  in  which  it  will  be  the  subject 
of  a  beneficial  provision  for  himself,  which  the  law  recognizes 
and  allows.  Even  if  he  disposes  of  his  property  subject  to 
execution,  for  the  very  purpose  of  converting  the  proceeds 
into  exempt  property,  this  will  not  constitute  legal  fraud. 
This  he  may  do  at  any  time  before  the  creditors  acquire  a 
lien  upon  his  property.  It  is  a  right  which  the  law  gives  him, 
subject  to  which  every  one  gives  him  credit;  and  fraud  can 
never  be  predicated  on  an  act  which  the  law  permits.  This 
also  disposes  of  the  question  of  estoppel."  ' 

It  is  added,  "  Unfortunately  our  statute  fixes  no  limit  as  to 
value  upon  a  homestead  exemption.  It  must  be  confessed 
that  such  a  law  may  be  greatly  abused,  and  permit  great 
moral  frauds ;  but  it  is  a  question  for  the  legislature,  and  not 
for  the  courts."  ^ 

"  Does  it  vitiate  the  homestead  character  of  the  property 
when  the  designation  thereof  as  a  homestead  was  for  the  pur- 
pose of  preventing  the  creditor  from  collecting  his  debt?  The 
purpose  of  the  designation  of  the  property  as  a  homestead  is 
to  put  it  out  of  the  reach  of  creditors  while  occupied  as  a 
home;  and  such  purpose,  and  the  consequent  result  of  such 
designation,  are  warranted  by  the  statute,  though  occurring 
after  the  debt  was  contracted,  and  immediately  before  the 
creditor  had  attached  or  levied  upon  the  property,  and  though 
the  debtor  had  no  other  property  liable  for  his  debt.'  In  no 
way  does  the  statute  rest  upon  the  principles  of  equity,  nor  in 
any  way  yield  thereto."  * 

An  insolvent  woman  owned  a  brick  block  which  was  in- 
cumbered. She  had  other  property  on  which  she  lived,  and 
which  she  mortgaged  to  raise  money  to  apply  to  the  removal 
of  the  incumbrance  on  the  more  valuable  property  which  w^as 
not  then  her  homestead  but  which  she  designed  to  make  such 

1  Jacoby  V.  Distilling  Co.,  41  Minn.  227.  Here,  the  "homestead"  was 
227,  citing  Tucker  v.  Drake,  11  worth  $24,000  less  a  mortgage  of 
Allen,  145 ;  O'Donnell  v.  Segar,  25  $10,000,  consisting  of  a  half  interest 
Mich.  367;  North  v.  Shearn.  15  Tex.  in  a  building  block,  though  the 
174 ;  Cipperly  V.  Rhodes.  53  111.  34G:  "beneficiaries "  lived  up  stairs  over 
Culver  V.  Rogers,  28  Cal.  520 ;  Ran-  one  of  the  stores. 

dall  V.  Bultington,  10  Cal.  491.     On        «  Barnett  v.  Knight,  7  Colo.  365. 
estoppel :  In  re  Henkel,  2  Sawy.  305.        *  McPhee  v.  O'Rourke,  10  Colo.  301, 

2  Jacoby  v.  Distilling  Co.,  41  Minn.    SU6. 


510 


FRAUD. 


on  abandoning  tbe  other  after  mortgaging  it.  She  succeeded  in 
making  the  exchange ;  and  these  transactions  were  held  to  be 
not  in  fraud  of  her  jreditors,  notwithstanding  her  admitted 
insolvency.^ 


1  Palmer  v.  Hawes  (Wis.),  50  N.  W. 
341.  Cole,  C.  J. :  "  There  is  no  room 
to  doubt  that  Mrs.  Hawes  had  the 
right  to  abandon  the  house  and  lot 
in  the  Third  ward,  where  she  and 
her  husband  had  lived  for  many 
years,  and  occupy  the  brick  store  on 
Milwaukee  street  as  and  for  a  home- 
stead. The  law  would  permit  her  to 
make  that  change,  and  creditors 
could  not  object  to  it,  though  it 
might  be  unfavorable  to  their  inter- 
ests. True,  it  appeared  that  the  first 
floor  of  this  building  had  been  used 
and  occupied  as  a  store,  and  the  third 
floor  as  a  photograph  gallery,  but  the 
second  floor  had  been  occupied  as  a 
residence.  The  occupation  and  con- 
struction of  the  building  show  that  it 
might  well  have  the  character  of  a 
homestead  impressed  upon  it,  and  the 
proof  is  abundant. that  Mrs.  Hawes 
had  selected  and  intended  to  occupy 
it  as  her  homestead.  Since  the  case 
of  Phelps  V.  Rooney,  9  Wis.  71,  it  has 
been  held  that  the  building  need  not 
be  devoted  exclusively  to  the  use  of 
a  home  for  the  family  in  order  to  re- 
tain the  character  of  a  homestead, 
but  parts  of  it  might  be  used  for 
business  purposes.  Harriman  v.  In- 
surance Co.,  49  Wis.  71 ;  5  N.  W.  Rep. 
12.  So  the  fact  that  portions  of  the 
brick  store  were  used  for  other  pur- 
poses than  as  a  residence  for  the 
family  would  not  deprive  it  of  its 
homestead  character,  nor  prevent 
Mrs.  Hawes  from  acquiring  home- 
stead rights  therein.  Of  course,  when 
she  selected  and  occvipied  the  store 
for  her  homestead,  she  necessarily 
abandoned  or  lost  her  rights  in  her 
former  home.  A  person  can  have 
but  one  home  at  a  time.     '  He  may 


have  several  houses  at  once,  but  only 
one  can  be  his  home  at  a  time.'  Jar- 
vais  V.  Moe,  38  Wis.  440.  It  seems  to 
us  equally  clear  that  Mrs.  Hawes 
might  have  sold  her  home  in  the 
Third  ward  and  applied  the  proceeds 
of  the  sale  to  the  payment  of  a  mort- 
gage on  the  brick  block  which  B.  F. 
Rexford  held,  and  no  creditor  could 
justly  complain  of  such  an  applica- 
tion of  the  msney.  As  her  counsel 
says,  she  had  a  perfect  legal  right  to 
prefer  one  cieditor  over  another,  and 
to  pay  one  just  debt  in  preference  to 
another.  Now,  suppose  Rexford,  in- 
stead of  taking  a  second  mortgage  on 
the  Third  ward  property,  had  pur- 
chased the  equity  of  redemption  in 
that  property,  and  had  applied,  with 
the  consent  of  Mrs.  Hawes,  its  value 
to  the  reduction  of  his  mortgage  on 
the  brick  store.  Could  a  creditor 
complain  of  such  a  transaction  as  a 
legal  fraud  upon  his  rights?  We 
think  not.  This,  in  fact,  is  what  the 
learned  circuit  court  found  that  the 
transaction  amounted  to.  The  cir- 
cuit judge  states  that  he  finds  that 
the  mortgage  given,  mentioned  in 
the  testimony,  on  or  about  the  1st  of 
March,  1887,  was  given  for  the  pur- 
pose of  reducing  the  indebtedness 
upon  the  homestead, —  meaning  the 
store, —  and  for  no  other  purpose. 
This  finding  is  amply  justified  by  the 
evidence,  and  could  not  consistently 
have  been  otherwise.  We  see  no  ele- 
ment of  fraud  in  the  transaction,  nor 
anything  of  which  creditors  could 
complain.  It  is  very  obvious  that 
when  a  debtor  pays  one  creditor,  his 
ability  or  means  to  pay  others  is  di- 
minished ;  but  that  does  not  make 
such    payment   fraudulent  in    law. 


FKAUDULENT    SELECTION    FKOM    IJABLE    PUOI'EIiTY.  511 

The  owner  of  two  tracts  of  land,  either  bein^  susceptible  of 
being  made  his  homestead,  who  conveys  one  of  them  by  deed 
of  trust,  without  his  wife's  concurrence,  and  afterwards  sells 
the  other  upon  which  he  had  resided,  and  then  moves  upon 
the  one  conveyed  by  deed  of  trust,  will  not  be  allowed  to 
hold  it  against  a  purchaser  at  sale  under  the  trust  deed, 
"  Homestead  rights  are  to  be  protected  according  to  law,  but 
are  not  to  be  perverted  into  instruments  of  fraud." ' 

Selection,  from  property  that  would  be  liable  without  it,  is 
contemplated  by  statutes  which  save  to  the  debtor  a  certain 
amount  in  land,  to  be  selected  by  him  or  set  apart  by  the  offi- 
cer charged  with  the  execution.  Under  such  statutes,  cred- 
itors are  deemed  to  have  notice  that  such  setting  apart  from 
the  general  property  may  be  done,  and  therefore  to  have 
trusted  their  debtor  with  such  understanding.  In  the  selec- 
tion b}^  the  debtor  or  the  officer,  therefore,  there  is  no  fraud. 

It  was  held  not  fraudulent  for  a  litigant  to  declare  a  home- 
stead on  his  land  during  a  litigation  which  resulted  in  a  judg- 
ment against  him.' 

Homesteads  cannot  be  carved  out  of  partnership  property, 
to  the  prejudice  of  creditors,  for  the  use  of  members  of  an 
insolvent  firm.' 

Therefoi-e  we  fully  agree  with  the  debts  which  were  pressing  on  her. 
court  below  in  the  conclusion  that  She  wished  to  secure  a  home,  and 
the  evidence  fails  to  show  that  Mrs.  improve  her  pecuniary  condition. 
Havves  made  any  transfer  of  her  She  took  advice  of  counsel  as  to  what 
property  with  intent  to  defraud  her  she  had  better  do  under  the  circum- 
creditors.  The  transfer  of  the  shoe  stances.  She  changed  lier  home- 
stock  to  Rexford  was  for  the  purpose  stead,  and  made  the  transfers  she 
of  reducing  the  incumbrance  on  the  did,  following  the  advice  given  her. 
homestead,  and  so  the  court  finds.  It  is  true,  she  was  utterly  insolvent  at 
This  seems  to  have  been  an  honest  the  time,  but  the  evidence  fails  to 
and  fair  transfer.  If  she  had  had  the  show  any  fraudulent  i)urpose  on  her 
money  value  of  that  stock,  she  could  part  in  preferring  one  creditor  to  an- 
so  have  applied  it  on  the  mortgage,  other,  or  in  giving  Rexford  the  se- 
and  no  creditor  could  object  to  it.  curity  slie  did  for  his  debt  She  was 
But  the  plaintiff's  counsel  says  that  plainly  endeavoring  to  save  the  store 
Mrs.  Hawes  practically  admitted  that  for  her  homestead.  .  .  ." 
she  made  these  transfers  of  her  i  Rutherford  v.  Jamieson,  65  Miss, 
property  to  defeat  the  claim  of  Dr.  219.  The  rule  is  that  the  wife  must 
Palmer.  We  do  not  think  that  this  sign  such  deed  to  make  it  valid. 
is  a  fair  construction  of  her  testi-  Howell  v.  Bush,  54  Miss.  437. 
mony.  She  was  greatly  embarrassed,  ^pitzell  v.  Leaky.  72  Cal.  477. 
and  had  not  the  means  to  pay  the  •*  gy  the  law  of  Virginia,  membei-s 


512  FRAUD, 

§  5.  The  "  Policy  "  to  ^'^  Secure  "  Homestead. 

While  the  policy  of  the  law  is  to  protect  the  owner's  home- 
stead from  the  claims  of  ordinary  creditors  who  have  trusted 
him  after  due  notice  of  the  exemption,  it  is  not  to  bestow 
ownership  upon  him  at  the  expense  of  others.  The  state 
has  no  constitutional  power  to  "  rob  Peter  to  pay  Paul "  or 
to  give  to  Paul.  It  has  no  authority  to  help  any  man  to  do 
this  for  himself  and  his  family,  if  it  were  rich  enough,  and 
paternal  enough,  to  bestow  homesteads  on  the  poor,  the 
many  thousands  in  abject  poverty  who  have  nothing  in  hand 
under  liability  to  creditors  ought  not  to  be  overlooked.  If 
homestead  statutes  are  charity  laws,  paupers  appeal  most 
loudly  for  recognition.  But  let  the  opposite  view  be  pre- 
sented in  judicial  language: 

"  The  policy  of  the  law  is  to  secure  to  the  debtor  and  his 
family  a  homestead  which  shall  be  beyond  the  reach  of  his 
creditors,  however  numerous.  The  statute  seems  to  have  been 
made  for  those  who  get  in  debt,  and  not  for  those  who  always 
pay  their  debts.  Such  need  no  exemption  law,  for  they  are 
a  law  unto  themselves  to  that  extent.  This  policy  of  the 
statute  would  certainly  be  frustrated  if  none  are  entitled  to 
the  exemption  except  those  who  have  been  so  fortunate  as  to 
obtain  a  homestead  prior  to  becoming  judgment  debtors. 
There  can  be  no  such  exemption  without  ownership.  If  it  is 
only  true  that  there  can  be  no  exemption  until  there  is  a 
dwelling-house  upon  the  premises,  actually  occupied  by  the 
debtor  personall}^  then  it  would  almost  be  impossible  for  a 
homeless  debtor,  w4th  judgments  docketed  against  him,  to  get 
the  benefit  of  the  law ;  for  the  very  instant  he  acquired  title, 
the  judgment  lien  would  attach.  Under  such  a  construction, 
the  only  possible  way  of  securing  such  benefit  would  be  to  se- 
lect premises  with  a  dwelling  already  thereon,  and  then  actu- 
ally occupy,  with  the  family,  prior  to  the  acquisition.  But 
such  strict  literalism  would  do  violence  to  the  obvious  intent 
of  the  legislature,  and  the  Avhole  current  of  authority  in  this 

of  an  insolvent  firm  are  not  entitled  absence  of  a  constitutional  provision, 

to  homesteads  out  of  the  partnership  the  rule  would  hold  unless  there  is 

property,  as  such,  against  their  cred-  statutory  autliorization  to  the  con- 

itors.     Short   v.   McGruder,  22   Fed.  trarj'.     In  partnership  lands,  no  one 

46;    Va.   Const.,   art.   11,  §  1 ;  Code,  person   has  the  exclusive  title  and 

clj.  183,  §§  1,  11,  IG,  17.     And,  in  the  right  of  possession. 


FRAUDULENT   CONVEYANCE  —  CREDITORS    DISINTERESTED.         513 

state  upon  this  subject.  It  was  among  the  purposes  of  the 
statute  to  enable  any  one,  without  a  home  of  his  own,  to  ac- 
quire one,  even  though  jndgmonts  may  be  docketed  againsi 
him  when  he  embarks  in  the  enterprise."' 

"Where  does  the  statute  show  this  purpose?  In  what  sec- 
tion is  it  either  expressed  or  implied?  What  is  there,  either 
in  the  letter  or  spirit  of  the  statute,  to  justif}'^  the  statement 
that  it  was  among  its  purposes  "  to  enable  any  one  without  a 
home  of  his  own  to  acquire  one,  even  though  judgments  maj 
be  docketed  against  him  when  ho  embarks  in  the  enterprise?" 
What  "  enterprise?"  The  getting  of  a  homestead  at  the  ex- 
pense of  others.  The  statute  requires  that  the  homestead 
shall  be  "  owned  and  occupied"  by  the  householder  in  order 
to  be  exempt  from  execution.  There  is  nothing  to  favor  its 
acquisition,  nothing  to  enable  the  homeless  to  get  homes. 
The  statute  is  not  a  charit}'^  statute.  Certainly  it  is  not  one 
to  bestow  charity  in  fraud  of  creditors.  It  is  not  an  enabling 
act.  The  reader  will  find  it  not  materially  different  from 
most  of  the  statutes  in  other  states  on  this  point.^ 

It  is  reasonable  to  conclude,  however,  that  an  able  court 
understood  the  statute  of  its  own  state  better  than  a  student 
of  general  homestead  legislation  would  be  likely  to  do. 

Neither  this  nor  any  other  homestead  law  attempts  to  de- 
cide Avhether  the  debtor  or  the  creditor  is  the  more  in  need  of 
charity.  "  It  frequently  happens  that  the  creditor  is  more  in 
need  of  public  sympathy  than  the  debtor.  When  a  poor  man 
is  unjustly  ke])t  out  of  money  due  him,  the  distress  arising 
from  the  want  of  it  is  often  greater  than  that  caused  to  the 
other  party  by  its  collection.  If  the  suffering  was  but  equal, 
it  is  plain  that  one  man  should  not  suffer  for  the  follies  or  mis- 
fortunes of  another.     Every  one  should  bear  his  own  burden." ' 

§  6.  Fraudulent  Conveyance —  Creditors  Disinterested. 

Only  those  affected  by  fraud  have  the  right  to  complain  of 
it  in  a  civil  action.     The  rule  is  not  peculiar  to  creditors  with 

1  Scofield  V.  Hopkins,  61  Wis.  374.  p.  1322,  §  2280 ;  p.  1796,  §  3163 ;  p.  202a 

2  Sanborn  &  Berryman's  Annotated  £j  3823  ;  p.  2047,  §  3873. 
Statutes-ofWisconsin.  p.  1717,  g2983;  3  Case  v.  Dunmore,  23  Pa.  St  93, 
p.  1284.  §  2203 ;  p.  1298,  g§  222.5-6 ;  relative  to  chattel  exemption. 

p.    1318,   §    2271;    p.    2044,    §  38G2; 
33 


514  FRAUD. 

respect  to  fraudulent  dispositions  of  exempt  property,  but  is 
applicable  to  all  persons  with  respect  to  fraudulent  dispositions 
of  any  property:  if  they  have  no  interest,  they  cannot  be  de- 
frauded and  therefore  cannot  complain.  They  have  no  cause 
of  action  to  bring  into  court. 

The  purpose  of  the  debtor  may  be  fraudulent ;  he  may  even 
do  acts  which  would  amount  to  legal  fraud  but  for  the  exemp- 
tion law ;  he  may  be  guilty  of  moral  fraud,  yet  his  creditor  may 
not  be  defrauded  in  the  eye  of  the  law. 

However  great  may  be  the  moral  turpitude  of  putting  prop- 
erty beyond  the  reach  of  creditors  by  a  conveyance  made  by  a 
debtor,  it  is  not  technically  a  legal  fraud  if  the  law  has  with- 
held them  from  their  remedy  by  making  the  property  exempt 
in  the  hands  of  the  grantor.  His  object  may  be  to  cheat  them, 
but  the  law  looks  upon  him  as  conveying  that  in  which  the 
creditors  have  no  concern.  The  possibility  of  his  dying  child- 
less and  wifeless,  so  as  to  put  his  homestead  into  the  market, 
and  to  remove  the  shield  of  homestead'  protection  from  it,  is 
too  remote  to  give  the  creditors  any  immediate  interest.  As 
stated  judicially:  "Fraud  cannot  be  predicated  of  a  convey- 
f^nce  of  the  homestead,  for  the  creditor  could  not  have  reached 
that  with  his  exemption  if  the  debtor  had  retained  it.  The 
law  excludes  the  homestead  from  all  remedies  of  ordinary 
creditors  in  all  courts.  It  resolves  itself  into  this :  that  as  to 
exempt  property  there  are,  within  the  meaning  of  the  statute, 
no  creditors.  And  as  there  is  no  restraint  upon  the  debtor 
against  selling  and  conveying  such  property,  the  motives  with 
which  such  transfers  are  made  do  not  concern  the  creditor. 
The  debtor  may  sell,  exchange  or  give  it  away,  and  his  cred- 
itor has  no  just  cause  of  complaint ;  for,  being  exempt,  it  is  no 
more  beyond  his  reach  after  transfer  than  it  was  before.  In 
such  alienations  there  may  be  bad  motive  but  no  illegal  act."  ^ 

1  Smith,  J.,  for  the  court,  in  Stanley  O'Conner  v.  Ward,   60  Miss.    1037 ; 

V.   Snyder,   43  Ark.   429;   Credle   v,  Jones  v.  Hart,  62  Miss.  13;  Legro  v. 

Carrawan,   64  N.  C.  422;    Duval  v.  Lord,  10  Me.   165;  Eice  v.  Perry,  61 

Rollins,  71  N.  C.  221;  Winchester  v.  Me.  145:  Shawano  Bank  v.  Kqeppen, 

Gaddy,  72  N.  C.  115;  Smith  v.  Rum-  78  Wis.  533;    Hibbern  v.   Soyer,  33 

sey,  3:3  Mich,  191 ;  Cox  v.  Shropshire,  Wis.  319:  Pike  v.  Miles,  23  Wis.  168; 

25  Tex.  1 13 ;  Martel  v.  Somers,  26  Tex.  Bond  v.  Seymour,  1  Chand.  (Wis.)  40 ; 

551 ;    Smith  v.  Allen,  39  Miss.  469 ;  Hixon  v.  George,  18  Kas.  253 ;  Mon- 

Pennington  v.   Seal,   49    Miss.    518;  roe  v.   May,   9  Kas.  466;  Sproul  v. 


REMOTK    INTKKESTS    IN    FRALUULKNT    CON VKVANCES.  Til.. 

Exemption  laws  and  the  statute  of  frauds  must  be  construcid 
together  as  being  in  ^;«ri  rnafena,  it  has  been  held ;  and  the 
former  is  said  to  control  the  latter  as  to  the  property  exempt.' 

The  beneficiary  holds  his  exempt  home  property  in  a  pecul- 
iar way:  he  can  sell  it  and  convey  good  and  unincumbered 
title  to  a  purchaser,  whenever  he  wills  to  do  so;  but  the  cred- 
itor, even  at  the  precise  juncture  Avhen  the  beneficiary  is  con- 
cluding to  abandon  his  benefit  and  is  actually  bargaining  for 
its  transfer  to  another,  cannot  set  up  any  claim  that  wf)uld 
lay  hold  of  the  property;  cannot  attack  it  on  the  ground  that 
it  is  about  to  be  spirited  away  beyond  the  reach  of  ordinary 
process;  cannot  exercise  any  remedy  whatever.  He  is  held 
to  have  no  business  to  meddle.  Even  should  the  homestead 
holder  donate  his  exempt  home  to  a  stranger,  instead  of  let- 
ting down  the  bars  to  let  creditors  come  in,  he  would  commit 
no  legal  fraud,  and  creditors  are  told  that  they  have  no  right 
to  complain.^  If  they  have  no  lien  upon  it,  they  are  treated 
as  disinterested  in  such  a  conve3'ance.'' 

Whoever  enters  into  a  contract  is  supposed  to  know  of  the 
existence  of  any  exemption  law  then  in  force ;  the  extent  of 
the  acreage  and  the  value,  held  by  the  debtor  free  from  lia- 
bility to  execution;  and  he  is  presumed  to  accept  the  obliga- 
tions of  the  debtor  accordingly.* 

§  7.  Remote  Interests  in  Fraudulent  Conveyances. 

Though  the  homestead  would  cease  to  be  exempt  on  the 
death  of  the  beneficiar}'^,  if  unmarried ;  or,  at  the  death  of  the 

Atchison  N.  Bank,  22  Kas.  336 ;  New  Swain,  15  Kaa  146 ;  Mitchell  v.  Skin- 
Orleans  V.  Morris,  105  U.  S.  600;  ner,  17  Kas.  565;  Randell  v.  Elder, 
Burns  v.  Bangert,  93  Mo.  167;  Davis  12  Kas.  257;  Wood  v.  Chambers,  20 
V.  Laud,  88  Mo.  436;  Beckmann  v.  Tex.  247,  254;  Sears  v.  Hanks,  14 
Meyer,  75  Mo.  333 ;  Hartzler  v.  Tootle,  Ohio  St.  298 ;  Vogler  v.  Montgomery, 
85  Mo.  23 ;  Abernathy  v.  Whitehead,  54  Mo.  584 ;  Crummens  v.  Bennett, 
69  Mo.  30 ;  State  v.  Diveling,  66  Mo.  68  N.  C.  494. 

375:  Sumner  V.  McCray,  60  Mo.  493 ;  ^Delashmut  v.    Trail,  44  la.  613; 

Vogler  V.  Montgomery,  54  Mo.  577;  Officer  v.  Evans,  ^8  la  557;  Aultman 

Baldwin  v.  Rogers,  28  Minn.  544.  v.  Heiney,  57  la.  654 ;  Butler  v.  Nel- 

iBarnett  v.   Knight,   7  Colo.  365,  son,  72  la.  782 ;  Williams  v.  Robbins, 

374.  15  Gray,  590. 

2Hixon  v.   George,   18    Kas.   253,  ■•Kelly    v,   Garrett,   67    Ala.    304; 

SGO;  Morris   v.   Ward,   5    Kas.   239 ;  Smith's  Ex.  v.  Cockrell,  66  Ala.  64 ; 

Monroe  v.  May,  9  Kas.  476 :  Moore  v.  Nelson  v.  McC^rary,  60  Ala.  301. 
Reeves,   15    Kas.    150;     Tarrant    v. 


510  FRAUD. 

widow  and  the  completion  of  the  children's  minority,  if  the 
beneficiary  is  married,  yet  it  has  been  frequently  held  that 
he  may  dispose  of  his  property  so  that  it  can  never  go  to  pay 
his  ordinary  debts.  Even  if  he  dispose  of  it  fraudulently,  his 
creditors  cannot  be  heard  to  complain,  if  it  is  not  a  legal 
fraud  upon  them.' 

In  the  first  of  the  cases  in  the  last  note  cited,  it  is  said  of 
the  voluntary  conveyance  of  the  homestead  by  an  insolvent 
debtor :  "  This  question  has  been  a  great  many  times  before 
the  courts  of  the  country,  and  in  a  large  majority  of  cases 
the  ruling  was  against  the  right  of  the  creditor  to  subject  the 
homestead,  merely  because  its  owner  and  occupant  had  con- 
veyed his  right  to  another,  even  though  the  conveyance  was 
voluntary,  or  made  under  circumstances  which  would  ordi- 
narily stamp  it  as  fraudulent.  There  can  be  no  fraud  unless 
there  are  claims  and  rights  which  can  be  delayed  and  hindered, 
and  which,  but  for  the  conveyance,  could  be  asserted.  The 
law  takes  no  cognizance  of  fraudulent  practices  that  injure  no 
one.  Fraud  without  injury,  or  injury  without  fraud,  will  not 
support  an  action.  Unless  they  co-exist,  the  courts  are  pow- 
erless to  render  any  relief."  ^ 

The  favored  homestead  holder  is  thus  held  happily  incapa- 
ble of  committing  fraud  against  his  creditors  by  any  disposi- 
tion he  may  make  of  his  exempt  realty.     Unless  his  voluntary 

1  Fellows  V.   Lewis,   65  Ala.    343 ;  rner,  6  Allen  (Mass.),  401 ;  Foster  v. 

Crummen  v.  Bennett,  68  N.  C.  494;  McGregor,  11  Vt.  595;  Danforth  v. 

Dreutzer  v.  Bell,  11   Wis.  114;  Pike  Beattie.   43  Vt.    138;    McFarland  v. 

V.  Miles,  23    Wis.  164;     Murphy    v.  Goodman,  6  Biss.  Ill ;  Cox  v.  Wilder, 

Crouch,  24  Wis.  365 ;  Anthony  A.  C.  2  Dill.  45 ;  Smith  v.  Kerr,  2  Dill.  50 ; 

Co.  V.  Wade,  1  Bush  (Ky.).  110 ;  Kne-  Shawano  Bank  v.  Koeppen,  47  N.  W. 

van  V.   Speaker,    11   Bush  (Ky.),  1;  (Wis.)  723.     fifee  Phelps  v.  Springfield. 

Marton  v.  Pagan.  5  Bush  (Ky.),  334;  39  111.  86;  White  v.  Clark,  36  111.  285. 

Lishy  V.  Perry,  6  Bush  (Ky.),  515 ;  Contra,  Cassell  v.  Williams,   12  111. 

Edmonson  v.  Meachara,  50  Miss.  34;  328;  Getzler   v.  Saroni,    18  111.  511; 

Vogler  V.  Montgomery,  54  Mo.  577 ;  Currier  v.  Sutherland,  54  N.  H.  475 ; 

Sears  v.  Hanks,  14  Ohio  St.  298 ;  Sue-  Huey's  Appeal,  29  Pa.  St.  219 :  Cham- 


cession  of  Cottingham,  29  La,  Ann. 
669 ;  Smith  v.  Rumsey,  33  Mich.  183 
Vaughan  v.  Thompson,  17  111.  78 
Muller  V.  Inderreiden,  79  111.  383 
Woods  V.   Chambers,   20   Tex.   247; 


hers  V.  Sallie,  29  Ark.  407 ;  Piper  v. 
Johnston,  12  Minn.  60 ;  Herschfeldt 
V.  George,  6  Mich.  456  (since  over- 
ruled in  33  Mich.  183) ;  Lauck's  Ap- 
peal, 12  Harris  (Pa.),  426. 


Legro  V.  Lord,  10  Me.  161 ;  Hugunin        -Fellows  v.  Lewis,  supra,  Stone,  J. 
V.  Dewey,  20  la.  368 ;  Castle  v.  Pal- 


CONVEYANCES    TO    CREDITORS'    PREJUDICE.  517 

conveyance  be  made  under  such  circumstances  as  to  be  equiv- 
alent to  a  surrender  of  his  exemption  right;  equivalent  to  the 
abandonment  of  his  homestead  by  non-occupancy,  his  credit- 
ors cannot  avail  themselves  of  his  act. 

In  this  very  case,  however,  it  was  held  that  the  homestead 
holder  conveyed  to  the  grantee  free  from  liability  to  forced 
sale  during  his  life-time  only,  since  he  could  transfer  no 
greater  rights  than  he  possessed ;  that,  upon  the  grantor's 
death,  without  leaving  either  a  widow  or  children,  the  home- 
stead exemption  ceased ;  that  the  conveyance  vested  in  the 
grantee  all  the  rights  in  the  homestead  which  the  grantor 
could  assert  against  his  creditors,  and  nothing  more;  that  the 
conveyance  was  voluntary  and  constructively  fraudulent 
against  existing  creditors;  and  that,  when  the  exemption 
ceased,  the  houiestead  was  liable  for  the  grantor's  debts.'  And 
the  court  quoted  the  following,  with  approval: 

"  The  legal  effect  of  the  act  is  to  create  no  new  estate,  but 
to  protect  the  occupant  of  the  land  in  the  use  and  occu])ancy 
of  the  land  so  set  apart  as  a  homestead,  during  the  time  of 
such  occupancy ;  but,  if  abandoned  by  removal  or  death,  leav- 
ing neither  wife  or  children  to  succeed  to  his  rights,  the  rights 
of  the  judgment  creditor  would  be  fully  restored."^ 

The  creditor  has  the  right  to  be  heard  on  the  question 
whether  or  not  he  has  been  injured;  whether  or  not  the  prop- 
erty, voluntarily  conveyed,  was  exempt. 

§  8.  Conveyances  to  Creditors'  Prejudice. 

Under  some  circumstances,  a  fraudulent  conveyance  of  a 
homestead  may  affect  the  interest  of  creditors,  so  that  they 
will  have  the  right  of  attacking  it.  Where  the  statute  gives 
the  legal  owning  householder  protection  for  life  or  a  term  of 
years,  but  leaves  the  reversion  liable  for  his  debts,  the  convey- 
ance of  the  fee  by  him  will  not  so  operate  as  to  cut  off  the 
risfhts  of  lienholders,  whose  dormant  liens  will  wake  to  life 
at  the  expiration  of  the  exemption  period. 

Under  statutes  which  leave  the  homestead-holding  legal 
owner  free  to  convey  the  fee  (acting  alone,  or  in  conjunction 

J  Fellows   V.    Lewis,   65    Ala.    357,         ^  Chambers  v.  Sallie,  20  Ark.  407  : 
citing  Bibb  v.  Freeman,  59  Ala.  612 ;     Norris  v.  Kidd,  28  Ark.  485. 
Sandlin  v.  Robinson.  62  Ala.  477. 


518  FKADD. 

vdth  his  wife  when  he  is  married,  and  where  her  joinder  is 
required),  such  conveyance,  if  made  by  an  insolvent  without 
consideration,  or  under  circumstances  that  would  indicate 
fraud  in  ordinary  transactions,  may  be  such  as  to  give  credit- 
ors the  right  to  interfere.  The  remote  chance  of  making  their 
money  upon  his  abandonment  of  his  exemption  right,  or  of 
his  waiver  or  forfeiture  of  it,  will  not  warrant  their  present 
interference ;  but  suppose  he  has  done  what  is  equivalent  to 
abandonment,  or  at  least  a  questionable  act  of  that  sort,  have 
creditors  no  interest  to  inquire  into  the  situation?  Have  they 
not  standing  in  court  for  that  purpose?  There  can  be  no 
doubt  of  this.  And  in  the  acquisition  of  property  claimed  as 
homestead,  there  may  be  such  fraud  as  will  vitiate  the  claim 
as  to  any  one  having  an  interest  to  test  it. 

"  It  is  well  settled  that  a  voluntary  conveyance  made  to 
hinder,  delay  or  defraud  creditors  is  void  as  to  them,  the 
grantor  being  insolvent  without  the  property  so  conveyed."  ' 
This  is  the  general  rule;  but  a  complaining  creditor  must 
show  himself  injured. 

The  conveyance  of  the  fee  of  an  excessive  homestead  by  the 
married  beneficiaries,  in  fraud  of  a  creditor,  may  be  set  aside 
after  the  death  of  the  husband  who  was  the  owner,  and  the 
excess  above  the  homestead  estate  may  be  devoted  to  the  pay- 
ment of  the  creditor.'-^ 

1  Campbell  v.  Jones,  52  Ark.  493,  simple    title    which    passed    to    his 

497;  Driggs  v.  Norwood,  50  Ark.  42 ;  widow  and  minor  heirs.     Skouton  v. 

Adams   v.    Edgerton,   48  Ark.   419 ;  Woods,  57  Mo.  380.     This  being  the 

Hershy    v.    Latham,    46    Ark.   542 ;  case,  it  was  properly  ruled  that  such 

Reeves  V.  Sherwood,  45  Ark.  520 ;  Ben-  a  thing  as  a  fraudulent  conveyance 

nett  V.  Hutson,  33  Ark.  762 ;  Oliphant  of  a  homestead  could  not  exist,  for 

V.  Hartley,  32   Ark.  465;  Massey  v.  the    reason    that     such    homestead, 

Enyart,   32   Ark.   251 ;    Bertrand  v.  being  exempt,  etc.,  could  not,  in  the 

Elder,  23  Ark.  494 ;  Leach  v.  Fowler,  nature  of  things,  be  »f raudulent  as  to 

22  Ark.  145 ;    Danley   v.  Rector,  10  creditors  who  had  not  nor  could  ac- 

Ark.  225.  quire  any  interest  in  such  exempt 

^  Schaeffer  v.  Beldsmeier  (Mo.),  17  property.    Volger  v.  Montgomery,  54 

S.  W.  797.    Sherwood,  J.,  said  for  the  Mo.  577.     But  a  radical  change  oc- 

court :      "  Under    former    statutory  curred  in  the  homestead  act  by  rea- 

provisions  relating    to    homesteads,  son  of  the  amendment  of  1875,    Rev. 

the  land  covered  by  a  homestead  was  Stat.  (1889),  §  5439.  The  fee  no  longer 

wholly  exempt  from  all  liability  for  passes  to  the  original  occupant,  nor, 

debt,  exempt  from  attachment  and  on  his  decease,  to  his  wife  and  his 

execution.     The  husband  took  a  fee-  heirs,  but  an   estate  limited  to  the 


CONVEYANCES    TO    CRKDITOKs'    PliE.IUDICE.  519 

The  rule  of  fraudulent  donations,  respecting  property  not 
exempt,  is  thus  clearly  stated :  "  It  is  axiomatic  that  debts 
must  be  paid  before  gifts  can  be  made ;  and  it  is  also  an  estab- 
lished principle  that  a  voluntary  conveyance  is  prima  facU 
evidence  of  a  fraudulent  intent  against  creditors,  and,  if  made 
by  a  person  who  is  indebted,  is  a  well-recognized  badge  of 
fraud ;  for  its  natural  and  })robable  tendency  is  to  delay,  hin- 
der and  defraud  creditors."  ^ 

It  is  fraudulent  to  sell  all  one's  property  without  paying 
debts  or  providing  for  their  payment,  when  they  exist.^  It  is 
so,  not  only  in  one  state,  but  generally.  And  if  such  a  fraud 
has  been  committed,  the  administrator  of  the  fraudulent  debtor 
may  sue  to  recover  realty  thus  sold,  for  the  benefit  of  credit- 
ors of  the  estate.  He  ought  to  sue  in  equity,  however,  when 
the  debtor  had  homestead  right  in  indivisible  realty,  only  the 
excess  of  which  could  have  been  sold  in  fraud  of  creditors.^ 
They  could  not  be  tenants  in  common  with  the  debtor-home- 
stead-holder.* The  sale  of  the  homestead  was  good  except  as 
to  creditors  —  and  only  the  excess,  as  to  them,  was  not.* 

Exempt  property  is  not  subject  to  this  rule.  Creditors  are 
held  not  defrauded  by  the  conveyance  of  the  homestead  with- 
out consideration.  Having  no  right  to  make  their  money  by 
execution  agamst  it,  they  have  no  cause  to  complain,^ 

"  It  is  incumbent  on  the  creditor,  who  complains  of  a  fraud- 
ulent conveyance,  to  show  that  his  debtor  has  disposed  of 

death  of  the  widow  and  the  attain-        '  Gove  v.  Camphell,  62  N.  H.  401 ; 

nient  of  the  majority  of  the  jouug-  Bump  on  Fraud.  Con.  (2d  ed.)  2C8. 
est  child.      And   so   this   point   was        ^  Prout   v.   Vaughn,    52    Vt    451 ; 

ruled  in  Poland  v.  Vesper,  67   Mo.  Churcli  v.  Chapin,  35  Vt  223 ;  Foster 

727.     .     .     .     That    case    goes    far  v.  Fostei-,  56  Vt  540 ;  Kelsey  v.  Kelley 

towards  being  decisive  of  the  qne  at  (Vt.\  22  A.  597. 

bar.     Here  the  land  alleged  to  have        *Pease  v.  Shirlock,  63  Vt  622;  23A. 

been  fraudulently  conveyed  by  the  660 ;  Spaulding  v.  Warner,  59  Vt  646. 
deceased  and  his  wife  in  his  life-time        *  Lindsey  v.  Brewer,  60  Vt  627. 
was  the  entire  fee,  but  only  a  home-        ^Bassett  v.  Hotel  Co.,  47  Vt  313. 
stead   estate  was   exempt   from  the        «Smitii  v.   Rumsey,  33  Mich.  183; 

claims   of   creditors.     .     .     ."     So  it  Rhead   v.    Hounson,   46    Mich.   244; 

was  held  that  the  sale  of  the  fee  was  Putte  v.   Geller,  47  Mich.  560.     See 

fraudulent  as  to  the  creditor,   and  Hershfeldt  v.  George,    6  Mich.  468, 

could  be  set  aside,  and  the  reversion-  which  was  partially  overruled  in  the 

ary  interest  applied  to  the  satisfac-  first  case  above  cited.     See,  also,  Wis- 

tion  of  the  judgment  ner  v.  Farnham,  2    Mich.   472:  and 

Matson  v.  Melchor,  42  Mich.  477. 


520  fkat;d. 

property  that  might  otherwise  have  been  subjected  to  the 
satisfaction  of  his  debt.     Until  this  is  done  no  injury  a})pears. 

"Creditors  cannot  complain  that  a  conveyance  of  a  home- 
stead is  fraudulent  as  to  debts  for  the  payment  of  which  it 
cannot  be  taken  in  execution.  They  could  not  reach  it,  if  not 
conveyed,  and  hence  the  motives  for  the  conveyance  do  not 
concern  them." ' 

The  rule  that  it  is  incumbent  on  a  party  attacking  a  sale  on 
the  ground  that  it  was  made  to  hinder,  delay  and  defraud 
creditors,  to  show  that  if  it  had  not  been  made  the  goods 
would  have  been  subject  to  seizure  and  sale  upon  execution, 
was  not  applied,  as  to  sales  of  personal  property,  in  a  subse- 
quent decision.- 

An  unmarried  man  conveyed  his  land  to  his  brother,  by  a 
deed  absolute  though  without  consideration.  The  purpose 
was  understood,  by  the  court  that  passed  upon  the  transac- 
tion, to  be  the  defrauding  of  his  creditors.  There  was  an 
understanding  between  the  brothers  that  the  grantee  would 
reconvey  to  the  grantor  when  requested  to  do  so  by  the  latter. 
He  gave  a  power  of  attorney  to  the  grantor  at  the  time,  au- 
thorizing him  to  control  and  even  to  convey  the  land.  The 
deed  and  power  of  attorney  were  duly  recorded. 

Two  mortgages  were  put  upon  the  land  by  this  agent  of  its 
recorded  owner.  Actions  to  foreclose  were  brought  upon 
them,  against  that  owner,  who  wa,s  not  served.  Now  comes 
into  court  the  agent  in  the  capacity  of  owner,  defendant  and 
homestead  claimant,  with  his  wife  as  co-claimant. 

Having  become  married  since  his  transfer  of  the  land  to  his 
brother,  he  could  fill  the  condition  of  family  headship ;  repu- 
diating the  hona  fides  of  his  own  conveyance,  he  averred  com- 
pliance with  the  condition  of  ownership;  living  with  his  wife 
upon  the  property,  he  met  the  requirement  of  occupancy  — 
what  lacked  he  yet? 

The  court  said  he  lacked  the  essential  —  ownership^  because, 

1  Campbell  v.  Jones,  53  Ark.  493,  216;  Hempstead  v.  Johnson,  18  Ark. 

^97;  Bogan  v.  Cleveland,  52  Ark.  101 ;  124 ;  Meux  v.  Anthony,  11  Ark.  411 ; 

Stanley  v.  Snyder,  43  Ark.  430 ;  Erb  Story's  Eq.  Jur.  367. 

V.  Cole,   31    Ark.   557 ;  Clark  v.   An-  ^  Blythe  v.  Jett,   52  Ark.  547,  549, 

thony,  31  Ark.  546;  Sale  v.  McLean,  expressly  overruling  Erb  v.  Cole,  31 

29  Ark.  612 ;  Clinton  v.  Estes,  20  Ark.  Ark.  557. 


LIABILITY    TO    CREDITORS.  521 

if  his  conveyance  to  his  brother  was  made  to  defraud  cred- 
itors, as  the  court  believed,  the  law  would  not  permit  him  to 
benefit  by  his  own  wrong  by  compelling  a  reconveyance.  At 
the  time  of  his  marriage  he  had  no  interest  in  the  land  which 
the  law  would  enforce,  and  therefore  none  to  become  vested 
in  his  wife. 

If  he  and  she  had  any  interest  at  the  time  of  their  marriage, 
they  subsequently  joined  in  conveying  the  land  to  his  brother, 
professedly  to  correct  and  perfect  that  given  to  him  in  the  first 
instance:  so  she  and  her  husband  concurred  in  the  former  con- 
veyance, the  court  said.  There  was  in  evidence  an  unrecorded 
quitclaim  deed,  b}'^  which  the  land,  or  a  part,  was  reconveyed, 
in  terms,  to  the  brother  originall}'  owning,  and  now  before 
the  court  claiming  to  own;  but  the  court  gave  it  no  weight. 
Judgment  was  rendered  against  the  land,  foreclosing  the  mort- 
gages, and  the  claimant  and  wife  were  adjudged  to  have  no 
property  right  and  therefore  no  homestead  interest.^ 

§  9,  Liability  to  Creditors. 

The  impossibility  of  defrauding  creditors  by  the  conveyance 
of  property  which  is  exempt  from  attachment  and  levy  has 
been  denied  judicially.  A  homestead,  occupied  by  a  judgment 
debtor,  was  seized  in  execution.  The  property  was  not  of 
value  excessive  of  the  monetary  limitation  of  a  homestead. 
The  debtor  had  sold  it,  and  therefore  he  interposed  no  claim  in 
the  case  whence  the  writ  of  execution  issued,  to  have  home- 
stead assigned  him.  The  writ  was  executed,  and  the  court 
sustained  the  sale  on  the  ground  that  the  debtor's  deed  to  his 
grantee  was  fraudulent ;  that  the  property  had  not  ceased  to 
belong  to  the  debtor,  and  that  he  had  lost  his  exemption  by 
failing  to  claim  it.- 

A  creditor  has  an  interest  in  the  homestead,  such  as  will 
warrant  his  interference  with  any  fraudulent  disposition  of 
the  property  by  the  owner,  wherever  the  law  recognizes  judg- 
ments on  ordinary  debts  as  liens  against  the  debtor's  home- 
stead property  - —  liens  ultimately  vindicable,  though  post- 
poned during  an  exem])tion  period.  AVhen  this  was  the  law 
in  a  state  which  has  since  changed  its  statute  on  the  subject, 
a  homestead  became  subject  to  execution  in  satisfaction  of 

•Johnston  x.  McPlierran,  87  la.  2Currier  v.  Sutherland,  54  N.  H. 
230 :  47  N.  W.  60  475. 


522  FRAUD. 

such  a  judgment  if  the  debtor  removed  from  it  or  sold  it.  A 
homestead-holder  having  transferred  his  home,  the  court  de- 
clared the  deed  fraudulent  and  prejudicial  to  the  creditor,  and 
within  both  the  letter  and  spirit  of  the  law  which  declares 
such  a  conveyance  void  as  against  those  who  are  hindered,  de- 
layed or  defrauded.  The  right  to  the  ultimate  enforcement 
of  the  lien  was  pronounced  a  valuable  right  secured  by  law  to 
the  creditor,  and  the  attempt  to  deprive  him  of  it  was  char- 
acterized as  fraudulent  and  prejudicial:  so  the  creditor  had 
such  interest  as  would  authorize  his  interference.^  This  is 
good  reasoning,  and  therefore  good  law  now,  in  all  states 
which  give  the  ordinary  creditor  the  right  to  obtain  a  judg- 
ment which  will  bear  a  lien  upon  the  debtor's  homestead, 
however  much  postponed:  provided  there  be  no  statute  to  the 
contrary.  If  the  debtor's  disposition  of  his  homestead  is  prej- 
udicial to  the  );ights  of  his  creditors  in  any  way,  they  have 
the  right  to  interfere. 

Wherever  the  lecral  effect  of  the  statute  is  not  to  create 
"  an  estate  of  homestead  "  (or  anything  which  that  term  would 
imply),  but  merely  to  protect  the  home  during  occupancy  as 
such,  judgment  creditors  have  rights  that  become  enforceable 
in  case  of  the  cessation  of  occupancy,  whether  owing  to  vol- 
untary abandonment  or  to  the  death  of  the  beneficiary  with 
no  successor.  A  fraudulent  conveyance  of  the  homestead  by 
such  a  beneficiary  was  successfully  attacked  by  his  creditors 
after  his  death.^ 

Gains  Hunger  and  Celia,  his  wife,  conveyed  their  home- 
stead to  Isadore,  their  daughter.  Subsequently  the  sale  was 
vacated  in  an  equity  suit  brought  by  the  assignee  of  Gaius  in 
bankruptcy,  against  Isadore,  on  the  ground  that  the  convey- 
ance was  fraudulent  as  to  creditors.  It  was  held,  in  a  suit  by 
the  purchaser  of  this  property  at  the  bankrupt  sale,  to  eject 
tl  3  possessors,  that  if  Gaius  and  Celia,  who  had  joined  in  the 
deed,  had  been  made  parties  to  the  suit  of  the  assignee  against 
Isadore,  they  might  have  been  concluded  by  decree  therein ; 
but  that,  as  they  were  not,  they  could  claim  homestead  after 
their  deed  had  been  set  aside  for  fraud  as  to  creditors.' 

Had  no  more  than  the  limit  of  property  protected  as  home- 
stead been  conveyed  to  Isadore,  it  might  have  been  said  that 

1  Piper  V,  Johnston,  12  Minn.  60,  6S.        3  McFarlaud  v.  Goodman,   6  Biss. 

2  Chambers  v.  Sallie,  29  Ark.  407.       Ill,  citing  Cox  v.  Wilder,  2  Dill.  45; 


SELLFNG    LIAUI.K    PROPERTY.  523 

the  creditors  had  no  interest  in  the  conveyance,  according  to 
many  decisions  already  adduced;  hut  as  nuicli  lar<^er  [)roj)- 
erty,  including  the  homestead,  had  heen  frau(hdently  conveyed, 
the  whole  transaction  was  set  aside  at  tlie  suit  of  the  assignee. 
And,  in  the  ejectment  suit,  the  grantors  were  held  not  to  have 
lost  any  exemption  rights  by  their  abortive  attempt  to  con- 
vey —  contrary  to  the  established  principle  that  a  conveyance 
binds  the  parties  to  it,  though  fraudulent  as  to  creditors.* 

"There  is  no  principle  of  law  more  consonant  with  reason, 
or  better  supported  by  authority,  than  that  a  conveyance 
which  is  fraudulent  as  to  creditors  binds,  nevertheless,  the 
parties  to  it.  Through  the  'cloud  of  authorities'  of  which  the 
counsel  speak,  this  principle  shmes  perpetually,  and  it  guides 
us  to  the  conclusion  that  the  appellant  is  here  without  merits. 

"  Having  caused  his  house  and  lot  to  be  conveyed  to  his 
wife  for  the  purpose  of  hindering  and  delaying  his  creditors, 
denying  his  ownership  as  long  as  denial  would  serve  to  keep 
them  off,  he  chops  round  now,  when  they  have  raised  $314 
out  of  the  property  by  a  sheriff's  sale  of  it,  and  claims  §300 
of  the  proceeds  under  our  exemption  statute. 

"It  would  be  a  perversion  of  that  humane  law  to  apply  it 
to  such  a  case.  As  to  his  creditors,  the  fraudulent  deed  was 
void,  and  he  remained  the  owner  of  the  property;  but  the 
deed  concluded  him  for  all  other  purposes.  The  statute  was 
not  made  as  an  instrument  of  fraud  to  delay  and  hinder  cred- 
itors, but  to  secure  to  honest  debtors,  from  the  wreck  of  their 
fortunes,  a  subsistence  until  they  can  'do  something  for  them- 
selves and  their  families. 

"  But  if  the  debtor  may  first  convey  away  his  property  in 
fraud  of  creditors,  and  then  when  it  is  seized  or  sold  come  in 
and  take  the  proceeds,  the  statute  is  worse  than  the  fraudu- 
lent deed,  because  more  efficacious  to  cheat  the  creditor."  ■ 

§  10.  Selling  Liable  Property. 

A  debtor,  selling  all  his  liable  property,  claiming  his  exempt 
property  as  free  from  his  creditors,  and  paying  no  debts,  is 
held  not  to  have  committed  fraud  upon  his  creditors.^ 

Woodvvoith  V.  Paige,  5  O.  St.  70;  In        3  Wilcox  v.  Hawley,  31  N.  Y.  648; 

re  Pratt,  1  Ceut.  L.  J.  290.  Callawaj^  v.  Carpenter,  10  Ala.  500; 

1  Huey's  Appeal,  29  Pa.  St.  219.  Mosely  v.  Anderson,  40  Miss.  49. 

Ub. 


524  FRAUD. 

It  is  plainly  dishonest  for  a  debtor  to  dispose  of  all  his  lia- 
ble property  and  hold  his  homestead  exempt.  It  has  been 
held  fraudulent  "in  fact  and  in  law,"  since  it  is  "with  the 
direct  intent  of  benefit  or  advantage  to  the  seller,  to  the  in- 
jury of  creditors."  ^  This  was  virtually  overruled  in  a  subse- 
quent case,-  in  which  a  debtor  was  upheld  in  appropriating 
means  that  should  have  gone  to  the  payment  of  his  other 
debts,  for  the  purpose  of  removing  a  mortgage  on  his  exempt 
property  —  the  court  looking  upon  it  as  merely  making  a 
preference  among  creditors  which  the  law  allowed.*  The 
preference  given  here  was  to  himself :  he  paid  what  would  re- 
lieve his  homestead  and  left  unpaid  all  debts  which  he  could 
neglect  with  impunity.  He  could  do  so  under  the  law,  and 
therefore  was  not  guilty  of  legal  fraud,  whatever  his  act  may 
have  been  in  the  court  of  conscience. 

An  insolvent  debtor,  taking  the  meajis  that  ought  to  go  to 
his  creditors,  and  buying  a  homestead  therewith,  has  been  up- 
held by  the  courts  in  so  doing;  and  the  debts  antedating  the 
purchase  were  not  allowed  to  be  enforced  against  such  home- 
stead.'' 

"  We  do  not  think  that  a  debtor,  being  absolutely  insolvent 
and  having  his  creditors  pressing  him  for  the  payment  of  his 
claims  and  fully  cognizant  of  his  inability  to  pay  such  debts, 
can,  to  defraud  his  creditors,  transfer  possession  of  goods  pur- 
chased by  him  upon  credit,  and  take  in  exchange  therefor 
land,  either  in  his  own  name  or  in  the  name  of  his  wife,  and 
then  claim  the  same  as  exempt  as  a  homestead  against  such 
existing  creditors.  '  A  party  cannot  turn  that,  which  is  granted 
him  for  the  comfort  of  himself  and  family,  into  an  instrument 
of  fraud.' "5 

1  Riddell  v.  Shirley,  5  Cal.  488.  where  a  stock   of  goods  were  ex- 

2  Randall  v.  Buffington,  10  Cal.  491.  changed  for  a  homestead,  and  part  of 

3  Citing  Dana  v.  Stanfords,  10  Cal.  them  had  been  recently  purchased  on 
269 ;  Nicholson  v.  Leavitt.  4  Sand,  credit,  and  had  not  been  paid  for  at 
252 ;  Covanhoven  v.  Hart,  21  Pa.  St.  the  time  the  whole  was  exchanged 
495 ;  Worland  v.  Kimberlin,  6  B.  for  the  homestead,  it  was  held  to  be 
Mon.  608 ;  Kennaird  v.  Adams,  11  no  fraud,  even  against  the  creditors 
B.  Mon.  102.  who  had  not  been  paid  for  the  last 

*  Cipperly  v.  Rhodes,  53  111.  346.  purchased  goods.      The  court,  how- 

5  Long  V.  Murphy,  27  Kas.  375,  380,     ever,  said  that  it  did  not  appear  that 

citing  Pratt  v.  Burr,  5  Biss.  26.     But    these  last  purchased  goods,  or  the 


SKI.LIxXG    LIAIil.E    rUOPKR'l-Y.  525 

A  husband  borrowed  money,  and  he  and  liis  wife  joined  in 
conveying  their  homestead  property  (previously  set  apart  to 
them)  to  secure  the  debt.  At  the  same  time  they  took  of 
the  lender  his  bond  to  reconvey  to  them  the  property  on  their 
paj^ment  of  the  debt.  They  remained  in  possession.  The 
lender  obtained  judgment,  conveyed  the  land  to  the  husband, 
and  then  levied  upon  it.  The  husband  had  died.  ITis  widow 
resisted  the  levy  on  the  ground  that  the  property  was  exempt 
as  a  homestead :  and  so  the  court  held.'  When  the  deed  is 
absolute  as  security,  subsequent  application  for  homestead  will 
not  defeat  it.^ 

Though  a  homestead,  not  subject  to  lien  or  liable  to  execu- 
tion, be  conveyed  with  a  bad  motive,  the  conveyance  is  held 
not  fraudulent  as  to  the  creditors  of  the  vending  householder.-^ 
But  if  a  debtor  exchange  his  homestead  for  real  estate  in 
quantity  beyond  the  statutory  limit,  the  excess  will  be  liable 
to  creditors.^  And  he  cannot  avoid  this  liability  by  canceling 
and  surrendering  his  deed.^  A  debtor  having  acquired  six- 
teen hundred  acres  of  land  by  such  exchange,  and  having 
written  across  the  deed  his  cancellation  of  it,  and  then  sur- 
rendered the  deed  to  the  grantor,  was  held  to  have  failed  to 
put  the  excess  above  one  hundred  and  sixty  acres  beyond  the 
reach  of  his  creditors.  Though  the  land  was  subsequently 
deeded  by  the  same  grantor  to  the  debtor's  children,  they  ac- 
quired no  title,  since  their  father's  title  had  not  been  divested, 
and  all  the  land  but  the  homestead  quantity  was  open  to  cred- 
itors." 

The  conveyance  of  property",  including  the  homestead,  is 
void  as  to  the  excess,  if  made  without  consideration  and  in 
fraud  of  creditors." 

proceeds  tliereof,  were  a  part  of  the  ^Bogan  v.  Cleveland,  52  Ark.  101, 

purchase-money  of  the  homestead  —  relative   to  a  convej-ance  made  in 

leaving  us  to  infer  that  there  would  1884,  governed  by  Const,  of  1874,  art. 

have  been  fraud  had  this  been  made  9,  §  3 ;  Bump  on  Fraud.  Con.,  p.  245 ; 

to  appear.     Tootle  v.  Stine,  31  Kas.  Wait  on  Fraud.   Con.,   §  71 ;  Cam- 

66,  in  which  Long  v.  Murphy  is  dis-  mack  v.  Lovett,  44  Ark.  180. 

tinguished.  *  CaTnpbell  v.  Jones.  52  Ark.  493. 

iSaulsbury   v.   McCallum,   65   Ga.  ^Jb.;  Byrd  v.   Jones,  37  Ark.   194; 

102;    Ga.    Homestead   Act   of    186S;  Talifero   v.    Rawlton,    34    Ark.    503; 

Trammel  v.  Roberts,  55  Ga.  383.    See  Neal  v.  Seigel,  33  Ark.  63 ;  Strann  v. 

Gun  V.  Wades,  65  Ga.  537,  and  Moore  Norris,  21  Ark.  80. 

V.  Frost,  63  Ga.  296.  *  Campbell  v.  Jones,  supra. 

2  Allen  V.  Frost,  62  Ga.  659.  "  O'Connor  v.  Boylan,  49  Mich.  210. 


526  FRAUD. 

The  remainder,  after  the  homestead  shall  have  been  re- 
served according  to  law,  is  liable  on  the  foreclosure  of  any 
mortgage  covering  it  but  not  the  homestead.' 

A  purchase  of  land  subject  to  homestead  riglit,  but  fraudu- 
lently deeded  in  fee  by  the  sheriff  to  the  purchaser,  cannot 
successfully  resist  a  mortgage  given  by  the  homestead-holder, 
who  could  have  the  deed  reformed  or  wholly  set  aside  for 
fraud.-  The  sheriff  should  have  given  the  title  subject  to  the 
exemption  right.^  The  reversionary  interest  of  the  debtor 
cannot  be  sold  during  the  existence  of  the  homestead.* 

§11.  Fraudulent  Liens. 

A  husband  and  wife,  about  to  separate,  sold  their  homestead 
through  an  agent.  The  purchaser  reconveyed  it  to  the  hus- 
band in  a  deed  reciting  part  of  the  price  as  paid  in  cash  and 
part  by  promissory  notes  secured  upon  the  property.  The 
matter  coming  to  litigation,  the  question  was  whether  the 
sale  by  the  husband  and  wife  had  been  real  or  merely  an  at- 
tempt to  create  a  lien  on  the  homestead.  The  wife  contended 
against  the  purchaser  that  the  latter  was  the  purpose.  The 
evidence  was  conflicting,  but  the  sale  was  sustained.^ 

Liens  forbidden  by  the  constitution  cannot  be  fixed  upon  the 
homestead,  and  any  declarations  of  husband  and  wife,  in  the 
instrument  purporting  to  create  them,  are  of  no  avail.® 

A  husband  and  wife  executed  a  trust  deed  upon  their  rural 
homestead  to  secure  a  loan,  in  which  it  was  recited  that  the 
property  was  free  from  incumbrance.  There  was  an  existing 
vendor's  lien,  however,  of  which  the  lenders  had  knowledge; 
and  they  caused  it  to  be  discharged  before  advancing  all  the 
loan.  After  this,  the  husband  and  wife  sold  the  land.  They 
had  no  right  to  subject  it  to  the  mortgage,  and  they  could 
not  change  its  status  by  their  recitals,  nor  incumber  it  Avith 
liens,  in  any  wa}^,  in  contravention  of  the  constitution.    But  it 

1  Herschfeldt  v.   George,   6  Mich.  Ga.  476,  and  City  Bank  v.  Smisson, 

468;  Conistock  V.  Comstock,  27  Mich.  73  Ga.  423;  Jolly  v.  Lofton,  61  Ga. 

103;    First  National    Bank    of  Con-  154. 

stantine  v.  Jacobs,  50  Mich.  340.  5  O'Shaughnessy  v.  Moore,  76  Tex. 

-  New   England  Co.  v.  Robson,  79  606. 

Ga.  757.  « lb.;  Kempner  v.  Comer,  73  Tex. 

3  Robson  V.  Raw  lings,  79  Ga.  354.  203;  Pellat  v.  Decker,  72  Tex.  581; 

^  Stephenson  v.  Eberhart,  79  Ga.  Mortgage  Co.  v.  Norton,  71  Tex.  683. 
116.     Compare  Skinner  v.  Moye,  69 


FRAUDULICNT    LIKNS.  527 

was  held  that  the  mortgagees  might  be  subrogated  to  the 
rights  of  the  vendor  whose  valid  lien  they  had  caused  to  be 
discharged  by  the  loan.' 

Where  no  lien  can  be  saddled  upon  a  homestead  except  for 
purchase-money  and  for  ivorh  and  materkih  used  in  enndrwi- 
ing  improvements  on  .it,  the  owner  may  deceive  a  creditor  by 
giving  him  a  trust  deed  on  the  ])remises  to  secure  money  bor- 
rowed^to  erect  a  dwelling.  AVhen  the  creditor  comes  to  court 
with  his  trust  deed,  the  beneficiary  of  the  law  may  meet  him 
with  the  words  of  the  statute,  and  stand  upon  the  Jaw.  There 
is  no  lien.  The  lender  whistles  for  his  money  while  the  bor- 
rower enjo^'^s  the  home.^ 

A  debtor,  buying  a  homestead,  paying  for  it  from  the  pro- 
ceeds of  his  business,  and  having  the  title  conveyed  to  his 
wife,  may  thus  create  a  statutory  resultant  trust  in  favor  of 
his  creditors;  but  this  is  held  no  ground  for  an  order  grant- 
\r\^  creditors  leave  to  share  in  the  estate  without  filino;  re- 
leases,  unless  they  show  that  the  debtor  was  insolvent  Avhen 
he  bought,  and  that  there  was  fraudulent  intent  on  his  part. 
The  act  itself  was  declared  to  be  not  a  fraudulent  disposal  of 
his  property,  so  as  to  authorize  the  order,  under  the  statute.^   . 

It  was  recently  held,  by  a  federal  court,  that  real  estate 
bought  by  an  insolvent,  in  his  wife's  name,  and  occupied  by 
both  as  a  homestead,  is  exempt  from  the  claims  of  his  credit- 
ors, in  spite  of  the  fraud.^ 

A  debtor  gave  a  mortgage  to  secure  a  simulated  debt,  to 
put  his  land  out  of  the  reach  of  his  creditors.  At  his  request,  ' 
the  mortgagee  afterwards  conveyed  the  land  to  a  firm  which 
subsequently  deeded  it  to  the  debtor's  wife.  She  paid  noth- 
ing to  her  husband,  or  for  him,  as  a  consideration  for  the  land. 
Several  years  later  he  made  a  deed  to  her,  a])parently  to  es- 
cape an  approaching  judgment  against  him  for  a  new  debt,  as 
he  had  come  to  believe  that  his  first  fraudulent  essay  might 
prove  abortive  so  far  as  having  the  property  in  his  wife's 

iLoan  Co.  v.  Blalock,  76  Tex.  85;  3  Gen.  Stat,  of  IMinn.  of  1878,  ch.  43, 

Hicks  V.  Morris,  57  Tex.  658.  §  8 ;  7n  re  Welch,  43  Minn.  7. 

2  Ellerman  v.  Wurz  (Tex.),  14  S.  W.  ^  Backer  v.  Meyer  (Ark.),  43  Fed. 

833,  and  cases  therein  cited;  Const  703. 
Tex.,  art.  16,  §  50 ;  Rev.  Stat  Tex., 
art  3174. 


528  -  FKAUD. 

name,  through  it,  was  concerned.  This  conveyance  was  de- 
clared fraudulent  on  its  face.  The  wife  was  a  mere  volunteer. 
She  Avas  bound  to  show  valuable  consideration,  which  she  did 
not.     The  land  was  liable  for  the  husband's  debt.' 

The  trite  maxims :  "  He  who  seeks  equity  must  do  equity ; " 
and  "  A  party  must  come  into  a  court  of  equity  with  clean 
hands,"  are  applicable  to  homestead  contentions,  as  well  as 
to  any  other  in  equity  courts,  and  have  been  applied  to  them.^ 

An  exemptionist  sold  his  homestead  on  credit;  and,  the 
proceeds  not  being  exempt,  were  liable  to  garnishment  by 
creditors.  He,  however,  took  a  conveyance  of  other  real  es- 
tate, to  his  wife,  in  satisfaction  of  the  debt.  It  was  held  that 
"a  court  of  chancery  should  aid  the  judgment  creditors  to 
reach  the  assets  of  their  debtor  and  apply  them  to  their  judg 
ment  uninfluenced  by  the  fact  that  the  debt  arose  from  a  sale 
of  the  homestead,  since  the  statute  did  not  exempt  the  pro- 
ceeds of  a  homestead."  * 

But  when  a  husband  swapped  his  homestead  outright  for 
another  to  be  conveyed  to  his  wife,  he  was  deemed  to  have 
kept  within  the  law,  so  that  the  new  residence  was  exempt.^ 

The  owner  of  a  quarter  section  of  land  borrowed  money  to 
be  secured  by  a  mortgage  of  the  land.  The  lender,  living  in 
a  distant  city,  sent  a  drawn  mortgage  and  mortgage  note  by 
mail,  and  a  draft  for  the  money,  to  a  bank,  to  be  delivered  to 
the  borrower  upon  his  signing  and  duly  executing  the  note 
and  mortgage.  Before  signing,  the  borrower  became  married : 
a  fact  unknown  to  the  lender.  When  the  foreclosure  was  at- 
tempted, the  wife  claimed  homestead  in  the  land,  and  it  was 
awarded  her.^ 

An  exemption  right  acquired  after  the  levy  of  execution 
upon  the  ])roperty  to  which  it  attaches  is  effective  to  save 
the  homestead  to  the  occupant  and  his  family.  Between  exe- 
cution and  sale,  such  an  occupant  married ;  and  then,  being 
the  head  of  a  family,  claimed  homestead  inviolability,  "  and 
had  his  claim  allowed."  * 

1  Hodges  V.  Hickey,  G7  Miss.   715.  6  Jones  v.  Hart,  62  Miss.  13 ;  Letch- 

2Winslow   V.   Noble.    101   III.   194,  ford  v.  Carey,  52  Miss.  791 ;  Irwin  v. 

198.  Lewis,     50    Miss.     363;     Lessley    v. 

3  Adams  v.  Dees,  62  Miss.  354.  Pliipps,    49    Miss.    796 ;    Trotter    v. 

*  Airey  v.  Buchanan.  64  Miss.   181.  Dobbs,  38  Miss.  198. 
6  Tolman  v.  Leathers,  2  Fed.  653. 


FKADDULENT   TRANSFER   TO    WIFE.  529 

§  12.  Fraudnlent  Transfer  to  Wife. 

The  donation  or  sale  without  adequate  price  of  the  home- 
stead property,  from  the  husband  through  a  third  person  to 
his  wife,  is  hekl  allowable  and  not  in  fraud  of  creditors  though 
the  donor  be  insolvent.  Such  transaction,  in  which  the  wile 
joins  in  conveying  to  a  stranger  that  he  may  give  back  to 
her,  is  countenanced  in  the  face  of  the  admitted  purpose  of 
enabling  her  to  hold  the  property  free  from  liability  to  the 
husband's  creditors.' 

The  court  so  holding,  in  the  first  case  above  cited,  on  the 
subject  of  the  transfer,  said  that  whether  it  was  an  absolute 
conveyance  of  the  whole  title  to  the  wife,  both  legal  and  equi- 
table, "  with  a  fraudulent  intent,"  or  was  a  mere  vesting  of 
the  naked  title  in  her  while  the  husband  held  it  in  trust  for 
his  son,  "  is  wholly  unimportant,"  because  the  homestead  in- 
terest was  not  subject  to  execution  in  either  case.  "  In  the 
latter  case,  he  still  remained  the  equitable  owner  of  the  home- 
stead." ...  If  the  former  was  the  case,  and  the  absolute 
title  to  the  property  was  transferred  to  the  wife  through  the 
procurement  of  her  husband,  he  had  a  right  to  cause  such 
transfer,  so  far  as  it  related  to  the  homestead,  to  be  made,  as 
against  this  judgment,  even  though  it  loas  made  for  a  fra^idv- 
lent  jpurjpose;  for  .  .  .  the  judgment  was  no  lien  upon 
the  homestead  for  any  purpose.     .     .     ."  ^ 

But  such  transaction  has  been  declared  a  fraud,  though  the 
creditors  were  not  defrauded.  A  conveyance  from  husband 
to  wife  "  in  consideration  of  love  and  affection  "  was  stamped 
with  this  badge,  though  creditors  could  not  avail  themselves 
of  any  benefit  by  reason  of  the  fraud  on  the  part  of  the  donor 
and  donee.  It  was  said,  however,  that  had  both  joined  in 
conve3ing  to  a  third  person,  and  that  person  had  reconveyed 
to  the  wife,  the  exemption  right  Avould  have  been  lost.'*  Or. 
had  the  husband  conveyed  directly  to  her  without  considera- 
tion, while  both  occupied  other  property,  as  their  homestead, 
their  creditors  could  have  disregarded  the  conveyance.'^ 

1  Morrison  v.  Abbott,  27  Minn.  116 ;  '-  Citing    Wilder    v.   Haughey    21 

Dreiitzer  v.   Bell,    11   Wis.    119.     In  Minn.  101. 

Piper  V.  Johnson,  12  Minn.  60,  there  ='  Fergnson   v.    Kuniler    27    Minn, 

were  liens  which  the  transfer  did  not  156 ;  Morrison  v.  Abbott,  27  Minn.  116. 

divest  *  Ruohs  v.  Hooke,  3  Lea,  302. 

34  sQibbs  v.  Patten,  2  Lea,  180. 


630  FRAUD. 

A  debtor,  by  putting  the  title  of  his  hand  in  the  name  of  his 
wife,  is  not  thus  estopped  from  demanding  a  homestead  therein, 
as  against  his  judgment  creditor.^ 

A  husband,  indebted  to  his  wife,  transferred  to  her  the  title 
of  the  homestead.  Afterwards  he  paid  for  other  real  estate 
deeded  to  her.  It  was  decided  that  the  first  transaction  was 
not  in  payment  of  the  debt  to  her  (though  the  value  of  the 
title  was  amply  sufficient  to  satisfy  the  indebtedness),  and  that 
the  subsequent  payment  for  the  additional  property,  by  the 
husband  for  the  wife,  might  be  considered  a  liquidation  of  his 
debt  to  her,  and  that  creditors  were  not  defrauded.^ 

A  man  and  his  wife  gave  their  note  jointly,  and  she  charged 
her  separate  property  for  its  payment.  When  the  payee  sought 
to  subject  the  property  to  the  payment  of  the  note,  she  claimed 
homestead  in  it,  and  it  was  awarded  her.  The  judgment  lien 
attaching  before  the  assignment  of  homestead  was  said  to  be 
not  such  a  lien  as  precludes  such  assignment  or  allowance,  and 
that  real  estate,  about  to  be  levied  upon,  may  be  set  off  for 
the  use  of  the  debtor's  family,  when  it  has  the  status  of  a 
homestead. •'' 

A  man  and  wife  occupied  their  homestead  when  a  debt  was 
contracted  by  him,  and  when  judgment  upon  it  was  rendered. 
The  judgment  bore  no  lien  on  that  property :  therefore,  he 
could  sell  to  her  without  fraud  upon  creditors.'*  But  it  has 
been  held  that  a  homestead  conveyed  by  a  husband  to  his  wife, 
not  really  to  pass  title  but  to  defraud  creditors,  will  not  be 
protected  from  them  as  her  property  after  the  homestead  im- 
munity has  ceased,  but  will  be  then  liable  to  them  for  his 
debts.^ 

A  conveyance  to  a  married  woman,  in  consideration  of  the 

1  Roig  V.  Schultz,  42  O.  St.  165 ;  Scott,  55  N.  Y.  247 ;  Todd  v.  Lee,  16 
Sears  v.  Hanks,  14  O.  St.  298 ;  Tracy    Wis.  480. 

V.  Cover,  28  O.  St  61.     See  Bills  v.  4  Beyer  v.  Thoeming,  81  la.  517;  46 

Bills,  41  O.  St  206.  N.  W.  1074;  Delashmut  v.  Trau,  44 

2  Monroe  v.  May,  9  Kas.  466.  la.  613;  Officer  v.  Evans,  48  la.  557; 

3  Hill  V.  Myers,  46  O.  St  183;  Wild-  Aultman  v.  Heiney,  59  la.  654;  But- 
ermuth  v.  Koenig,  41  O.  St  180.    It  is  ler  v.  Nelson,  72  la.  732. 

said  in  the  Hill  case  that  the  woman  &  Baines  v.  Baker,  60  Tex.  139 ;  Mar- 
gave  no  mortgage  or  specific  lien;  tel  v.  Somers,  26  Tex.  554;  Cox  v. 
that  tlie  case  came  under  the  prin-  Shropshire,  25  Tex.  123 ;  Wood  v. 
ciple  of  the  cited  cases :   Maxon  v.  Chambers,  20  Tex.  254. 


EFFECT   OF    SETTING    ASIDE    A    FRAUDULENT   TRANSFER.         531 

price  paid  by  the  husband,  is,  in  effect,  as  if  the  deed  were 
given  to  him  and  then  a  voluntary  conveyance  made  by  him 
to  her.  Of  such  a  transaction,  it  was  judicially  said :  "  It  was 
done  to  avoid  an  existing  debt,  and  must  be  held,  to  the  ex- 
tent of  the  creditor's  rights,  to  be  fraudulent  and  void.  The 
creditor  had  an  equity,  by  proper  proceedings,  to  subject  the 
land  to  the  payment  of  his  judgment,  so  far  as  he  might  be 
able  to  do  so  without  contravening  the  policy  of  the  home- 
stead laws,  in  force  at  that  time,  and  applicable  to  that 
debt."  ' 

A  husband  conveyed  land  to  his  wife,  the  consideration 
being  partly  a  homestead  in  another  state,  where  the  joinder 
of  both  was  necessary  to  pass  title.  This  was  held  to  be  not 
fraudulent  as  to  his  creditors;  and  the  land  so  conveyed  was 
declared  not  liable  to  pay  their  claims  against  him.- 

The  owner  and  his  wife,  fraudulently  conveying  property 
which  included  their  homestead  to  a  third  person  to  be  recon- 
veyed  to  her,  for  the  purpose  of  defeating  creditors,  may  suc- 
ceed in  having  the  title  of  the  homestead  made  hers  while 
failing  to  get  the  liable  property  out  of  the  reach  of  execu- 
tion. In  other  words,  in  such  a  transaction,  the  conveyance 
has  been  held  void  as  to  creditors  but  good  as  to  the  home- 
stead against  which  they  had  no  rights.^ 

§  13.  Efifect  of  Setting  Aside  a  Fraudulent  Transfer. 

If  a  conveyance  is  set  aside  for  fraud  upon  creditors,  the 
interest  of  the  grantors  will  not  be  affected  by  such  convey- 
ance ;  that  is,  if  the  homestead  was  included  with  other  land, 
and  the  fraud  was  in  relation  to  the  latter,  the  homestead  will 
be  in  the  position  it  would  have  been  had  there  been  no  at- 
tempt to  convey.'* 

It  has  been  frequently  decided  that  after  a  debtor  has  made 
a  fraudulent  conveyance  of  land  to  cheat  his  creditors,  and 

1  Bennett  v.  Hutson,  33  Ark.  765.  *  Horton  v.  Kelly,  40  Minn.  193 ; 

2Stinde  v.   Behrens,  81   Mo.   254;  Wait  on  Fraud.   Conv.,  ^§  23,   46: 

overruling  Stinde  v.  Behrens,  6  Mo,  Hanson  v.  Edgar,   34  Wis.  6o3  (see 

App.  309.  Wliite    v.    Polleys,    20    Wis.     503) ; 

3  Bell  V.  Devore,  96  111.  217.  For  Hatcher  v.  Crews,  83  Va.  371 ;  Mar- 
conveyance  by  husband  to  defraud  shall  v.  Sears,  79  Va.  49 :  Boynton  v. 
his  wife,  see  ante,  chapter  on  Re-  McNeal,  31  Gratt  459;  Shipe  v.  Re- 
straint of  Alienation,  sec.  8.  pass,  28  Gratt  734. 


532  FRAUD. 

they  have  brought  suit  to  set  it  aside  for  fraud,  he  may  yet 
claim  homestead  therein  in  the  same  proceedings,  though  the 
fraud  be  proven  or  admitted.^  But  it  is  said  to  be  too  kite  to 
claim,  after  neglecting  to  do  so  in  such  proceedings.^ 

An  attempt  to  defraud  creditors  by  conveying  the  legal  title 
was  held  not  to  prevent  the  grantor  from  having  homestead 
subsequently  assigned  in  the  property,  though  the  conveyance 
had  been  set  aside  for  fraud.'  But  when  a  judgment  debtor 
had  fraudulently  deeded  his  home  tract  to  his  son,  and  other 
land  appraised  at  less  than  the  homestead  maximum  was 
assigned  to  him  as  a  homestead,  he,  after  accepting  the 
assignment,  was  estopped  from  claiming  homestead  in  the 
home  tract  after  his  deed  to  his  son  had  been  set  aside  for 
fraud.  That  tract  was  now  subject  to  sale  by  the  sheriff  to 
satisfy  the  judgment.* 

A  conveyance  of  land  with  the  purpose  of  defrauding  cred- 
itors does  not  work  the  forfeiture  of  the  fraudulent  conveyor's 
homestead.'^  The  reason  is  found  in  the  creditor's  want  of  in- 
terest in  that  which  is  not  liable  for  debt." 

It  has  been  held  that  though  a  man,  entitled  to  one  hun- 
dred and  sixty  acres  as  homestead,  conveyed  one  hundred  and 
twenty  of  them  to  his  children  in  fraud  of  his  creditors,  he 
could  yet  claim  the  wbole  as  exempt  after  the  conveyance  had 
been  set  aside  as  fraudulent.''  He  had  retained  forty  acres  as 
his  homestead  and  meant  not  to  retain  the  rest.  He  had 
abandoned  one  hundred  and  twenty  acres  in  his  fraudulent 
attempt  to  deprive  his  creditors  of  recourse  against  any  of  his 
property.  Under  the  authorities,  they  were  not  legally  de- 
frauded by  the  attempted  disposal  of  what  the  law  had  made 
exempt;  but  he  had  included  other  lands,  besides  the  one 
hundred  and  sixty  acres,  to  his  children,  without  any  consid- 
eration duly  proved,  for  the  manifest  purpose  of  preventing 
his  creditors  from  making  their  money  out  of  it.     If  the  re- 

1  Turner  v.  Vaughan,  33  Ark.  454.  5  Dortch  v.  Benton,  98  N.  C.  190; 

2  lb.;  Norris  v.  Kidd,  28  Ark.  486 ;  Crummen  v.  Bennet,  68  N.  C.  494. 
Frits  V.  Frits,  32  Ark.  327 ;  Larson  v.  « lb.;  Rankin  v.  Shaw,  94  N.  C.  405 ; 
Reynolds,  13  la.  57 ;  Haynes  v.  Meek,  Duval  v.  Rollins,  71  N.  C.  218. 

14  la.  320 ;  Lee  v.  Kingsbury,  13  Tex.        7  Carmack  v.  Lovett,  44  Ark.  180, 

68 ;  Tadlock  v.  Eccles,  20  Tex.  783.  citing  Turner  v.  Vaughan,  33  Ark. 

3  Jaffers  v.  Aneals,  91  111.  488.  454. 
*  Whitehead  v.  Spivey,  103  N.  C.  66. 


EFFECT   OF   SETTING    ASIDE    A   FRAUDULENT   TRANSFER.         533 

tention  of  forty  was  an  abandonment  of  his  homestead  right 
to  the  one  hundred  and  twenty,  the  Latter  should  have  been 
considered  open  to  creditors.  But  the  courts  do  not  deem 
such  a  transfer  as  relinquishment  of  the  homestead  of  which 
the  creditors  may  avail  themselves. 

The  debtor,  after  a  fraudulent  conveyance  has  been  set 
aside  at  the  suit  of  his  creditor,  may  yet  claim  homestead  in 
the  property  which  he  has  thus  sought  to  convey.'  This  is 
not  universally  true,  for  it  has  been  held  that  a  debtor  who 
sells  his  land  to  defraud  his  creditors  before  their  judgment 
has  been  rendered  cannot  have  it  reconveyed  to  him  after- 
wards and  then  defeat  the  judgment  lien  by  claiming  home- 
stead in  the  land.^ 

Land  was  conveyed  by  a  husband  to  his  wife.  His  home- 
stead right  was  not  lost;  and,  when  the  deed  had  been  set 
aside,  he  successfully  claimed  the  right.' 

A  husband  bought  land  in  his  wife's  name,  but  the  convey- 
ance to  her  was  set  aside  for  fraud,  and  the  property  was  sold 
as  his  to  pay  his  debts.  It  was  held  that  there  would  be  no 
error  in  allowing  him  part  of  the  proceeds  for  the  purchase 
of  a  homestead  if  the  debts  were  contracted  suhsequently  to 
the  passage  of  the  homestead  statute} 

The  only  statutory  basis  for  this  rendering  is  as  follows: 
"  Such  homestead  shall  be  subject  to  attachment  and  levy  of 
execution  upon  all  causes  of  action  existing  at  the  time  of  the 
acguiTing  of  such  homestead,  except  as  herein  otherwise  pro- 
vided ;  and  for  this  purpose  such  time  shall  he  the  date  of  the 
fling,  in  the  proper  office  for  the  records  of  deeds,  the  deed 
of  such  homestead,  when  the  part}^  holds  title  under  a  deed ; 
but  when  he  holds  title  by  descent  or  devise, /"/'o//!-  the  time  he 
hecoi^es  invested  with  the  title  thereto',  and  in  case  of  existing 
estates,  such  homestead  shall  not  be  subject  to  attachment  or 
levy  of  execution  upon  any  liability  hereafter  created."  * 

It  has  been  held  that  the  doctrine  of  caveat  emptor  is  appli- 

1  Marshall  v.  Sears,  79  Va.  49 ;  Boyn-  2  Gaines  v.  Nat  Exch.  Bank,  64  Tex. 

ton  V.  McNeal,  31  Gratt.  459;  Shipe  18. 

V.   Repass,   28  Gratt.   729;    Sears  v.  sWood  v.  Timmerman,29S.  G  175. 

Hanks,  14  O.  St.  298 ;  Crummen  v.  *  Buck  v.  Ashbrook,  59  Mo.  200. 

Rennet,  68  N.  C.  494 ;  Cox  v.  Wilder,  »  R.  S.  Mo.  1889,  §  5441 ;  R  S.  1879, 

2  Dill.  45.  §  2695 ;  Laws  1887,  p.  197. 


634  FRAUD. 

cable  to  a  purchaser  of  a  homestead  at  execution  sale,  so  that 
when  the  sale  had  been  vacated  he  was  not  entitled  to  have 
the  judgments  assigned  to  him,  which  he  had  satisfied  with  his 
money  paid  as  the  price  of  the  land ;  ^  but  he  should  have  his 
money  refunded  to  him  by  the  creditors,  with  interest. 

It  has  been  decided  that  the  purchaser  of  a  widow's  home- 
stead, at  a  sale  by  the  administrator  of  her  husband's  estate, 
is  bound  to  pay  the  price,  though  he  gets  no  title,  on  the  prin- 
ciple of  caveat  emptor.  To  quote  the  concluding  sentence  of 
the  decision:  "  If  the  sale  was  ineffective  to  convey  the  home- 
stead right,  he  is  liable  for  the  full  amount  of  his  bid,  because 
the  homestead  right  is  in  the  nature  of  a  paramount  outstand- 
ing title,  of  which  he  should  have  taken  notice  at  his  peril."  - 

The  court  erroneously  treated  the  purchaser  as  if  he  had 
bought  at  a  creditor's  sale. 

AVhen  a  husband  contracted  to  convey  homestead  land  with- 
out his  wife's  consent,  and  received  part  of  the  price,  the  pur- 
chaser was  denied  his  claim  for  recovery  of  the  money  paid 
without  consideration,  though  he  obtained  nothing  for  it,  and 
though  there  was  no  fraud  and  both  the  contracting  parties 
had  knowledge  of  all  the  facts.''  The  doctrine  of  caveat 
emptor  was  here  carried  to  an  unwarrantable  extent.  Doubt- 
less there  are  other  cases  in  the  books  which  go  as  far,  but  it 
must  always  be  repugnant  to  justice  for  a  man  to  be  denied 
the  recovery  of  his  money  honestly  put  forth  to  the  enrich- 
ment of  another,  when  the  thing  bought  has  failed  through 
no  fault  of  his,  and  no  neglect  or  mistake  in  which  the  other 
party  was  not  equally  involved.* 

§  14.  Effect  of  Forfeiture,  as  to  Creditors. 

A  creditor,  who  has  no  present  rights  against  a  homestead, 
may  have  an  interest  in  the  forfeiture  of  the  exemption  priv- 
ilege on  the  part  of  his  debtor,  or  in  the  surrender  of  it. 
While  the  exemption  exists,  the  creditor  cannot  employ  the 
usual  means  of  collecting  debts  against  such  property,  and 
therefore  is  said  to  have  no  interest  to  interfere  with  any  dis- 

1  Jones  V.  Blumenstein,  77  la.  361,  2  Cunimings  v.  Johnson,  65  Miss, 
citing,  as  to  caveat  emptor,   Ham-    343,  347. 

smith  V.  Espy.  19  la.  444,  and  Holt-        ^  Tliimes  v.  Stumpff,  33  Kas.  53. 
zinger  v.  Edwards,  51  la,  384.  ""See  cases  cited  in  Waples  on  At. 

and  Grar.,  pp.  535-544. 


EFFECT  OF  FORFEITURE,  AS  TO  CREDITORS.         535 

position  his  debtor  may  make  of  it.  But  when  the  latter 
already  has  made  such  disposition  as  to  remove  the  bar  that 
was  in  the  way  of  the  former,  an  interest  springs  into  being 
which  may  be  asserted. 

It  is  true  that  it  has  been  decided  that  creditors  who  had 
set  aside  a  deed  of  their  debtor  on  the  ground  that  it  was 
fraudulent  as  to  them  could  not  subsequently  interpose  the 
deed  against  his  claim  of  exemption  with  reference  to  the 
property  which  he  had  fraudulently  tried  to  convey.^  The  effect 
of  setting  the  transfer  aside  is  to  leave  the  property,  sought  to 
be  conveyed,  in  the  condition  it  would  have  been  had  nothing 
been  done;  and  the  fraudulent  grantor  is  not  held  to  have 
surrendered  or  abandoned  the  exemption  right,  according  to 
many  decisions.^  They  are  based  on  the  intent  of  the  grantor, 
which  was  to  surrender  his  exemption  right  (as  consequent 
upon  the  transfer  of  the  property)  in  consideration  of  the 
price,  but  not  to  make  a  general  relinquishment  of  it  inde- 
pendent of  the  consideration. 

There  may  be  a  surrender,  however,  in  which  all  creditors 
would  be  interested  because  it  would  remove  the  bar  to  their 
remedy :  as  when,  under  some  statutes,  husband  and  wife  filed 
a  relinquishment  having  all  the  requisites  of  a  deed  as  to  mat- 
ter of  form.  And,  without  such  statutory  dire<^tion,  it  would 
seem  that  they  might  surrender  in  this  way,  or  in  any  equiva- 
lent form.  And  in  a  fraudulent  transfer,  there  may  be  such 
general  relinquishment  as  would  amount  to  abandonment. 

Certainly,  creditors  who  have  no  present  interest  in  the  con- 
veyance of  their  debtor's  homestead  Avould  have  interest 
created  by  abandonment.  Are  they  not  so  far  interested 
before,  as  to  have  the  right  to  assert  that  certain  acts  amount 

1  Sears  v.  Hanks,  14  O.  St.  298.  42  Mich.  477 ;  Marshall  v.  Sears,  79 

2/6.;  Smith   v.   Kehr,   2   Dill.   50;  Va.  49;  Wood  v.  Chambers,  20  Tex. 

Cox  V.  Wilder,  2  Dill.  45 ;  McFarland  247 ;  Vogler  v.  Montgomery,  54  Mo. 

V.  Goodman,  6  Biss.  Ill;  Thompson  577,  5SJ^;  Buck  v.  Ashbrook,  59  Mo. 

V.  Neely.  50  Miss.  210 ;  Shaw  v.  Mill-  200 ;  State   v.  Diveling,  60   Mo.  375 ; 

saps,   50    Miss.    380;    Edmonson    v.  Danforth  v.  Beattie,  43  Vt.  138;   Mc- 

Meacham,   50  Miss.   34 ;    Currier   v.  Cord  v.  Moore,  5  Heisk.  734 ;  Patten 

Sutherland,  54  N.  H.  475, 486-7 ;  Pike  v.  Smith,  4  Ct  450-5 ;  Crummen  v. 

V.   Miles,    23  Wis.    164;    Boiling    v.  Bennett.  68  N.  C.  494.    Co?»pare  Sugg 

Jones,  67  Ala.  508 ;  Muller  v.  Inder-  v.   Tillman.   2   Swan.   208 ;    Rose   v. 

reider,  79  111.  382 ;  Ferguson  v.  Kim-  Sharpless,  33  Gratt.  153,  and  casee  in 

i)er,  27  Minn.  156 ;  Matson  v.  Melchor,  the  next  note. 


536  FRAUD. 

to  abandonment?  Under  doubtful  circumstances,  ought  they 
not  be  heard  on  the  question  of  abandonment? 

It  is  not  universally  held  that  a  debtor  may  make  a  fraudu- 
lent transfer  of  his  exempt  property  with  impunity,  so  that, 
when  it  is  set  aside  for  fraud,  he  will  be  protected  from  cred- 
itors as  before.^ 

A  sale  of  land,  including  the  family  residence  of  the  grantor, 
w^ith  no  reservation  of  homestead  as  required  by  the  statute 
of  the  state  where  the  conveyance  was  made,  w^as  set  aside  on 
the  ground  that  it  was  in  fraud  of  creditors.  The  court  held 
that  the  debtor  had  abandoned  his  exemption  right,  and  that 
it  did  not  revive  upon  the  setting  aside  of  the  sale  as  void  and 
fraudulent.^  If,  however,  a  sale  be  invalid,  the  exemption 
right  of  the  vendors  is  held  to  continue  so  long  as  they  retain 
possession.' 

§  15.  Comment. 

The  mere  right  of  occupancy  with  exemption  cannot  be 
conveyed  by^  deed.  It  ceases  by  being  abandoned  or  by  the 
death  of  the  beneficiary  who  leaves  no  legal  successor  to  it. 

The  palpable  solution  of  the  problem :  What  is  the  effect  of 
a  voluntary  transfer  of  the  homestead  by  a  childless  and  wife- 
less grantor,  w^here  the  reversion  or  fee  is  liable  to  creditors? 
is  that  the  act  is  abandonment  if  attended  with  cessation  of 
occupancy.  If  the  grantor  has  pocketed  the  price,  his  credit- 
ors may  not  reach  it ;  but  if  it  is  still  due  him,  why  may  it 
not  be  levied  upon,  by  judgment  creditors,  in  the  hands  of  the 
purchaser?  Why  may  he  not  be  garnished,  when  the  neces- 
sary statutory  grounds  for  attachment  exist? 

But,  the  sale  being  a  nullity,  the  property  itself  is  the  thing 
to  which  the  creditors  will  look.  The  attempt  to  defraud 
them  must  prove  abortive,  where  the  exemption  right  is  in- 
alienable and  the  realty  itself  liable  upon  the  termination  of 
the  right. 

1  Emerson  v.  Smith,  51  Pa.  St.  90 ;  The  same  doctrine  held  relative  to 

Smith  V.   Emerson,  43  Pa,  St.  456;  personal  property  exemption.      Ste- 

Strouse  v.  Becker,   38  Pa.   St.   190 ;  venson  v.  White,  5  Allen,  148 ;  Nash  v. 

Gilleland  v.  Rhoads,  34  Pa.  St.  187 ;  Farrington,  4  Allen,   157.     Sie  Leh- 

Dieffeuderfer    v.    Fisher,   3  Grant's  man  v.  Kelley,  68  Ala.  192. 

Cases,  30 ;  Cassell  v.  Williams,  12  111.  3  Richardson    v.   Woodstock    Iron 

387.  Co.,  90  Ala.  266. 

2Nichol  V.  Davidson,  8  Lea,  389. 


COMMKNT.  537 

If  the  sale  is  upon  credit,  it  may  be  that  the  grantor  in- 
tends to  buy  a  new  homestead  with  the  proceeds,  and  the  stat- 
ute of  his  state  may  protect  the  price  due  him,  for  a  year  or 
more ;  but  suppose,  in  the  deed,  or  in  any  way,  he  has  declared 
a  different  iutent,  why  may  not  his  creditors  attach  the  price 
in  the  hands  of  the  purchaser  when  ordinarily  he  would  be 
garnishabic? 

The  profession  will  understand  that,  in  tlie  present  state  of 
the  judicial  mind  of  the  country,  the  sale  of  the  homestead 
for  the  purpose  of  applying  the  price  to  other  objects  than  the 
purchase  of  a  new  home,  attended  with  delivery  to  the  pur- 
chaser and  discontinuance  of  occupancy  by  the  seller,  is  not 
held  to  be  fraudulent;  that  the  unpaid  price  in  the  hands 
of  the  purchaser  cannot  be  reached  by  creditors;  that  the 
price  may  remain  on  interest  so  long  as  the  parties  may  wish; 
and  that  the  ex-homestead  holder  may  openly  and  avowedly 
apply  the  price  to  the  expenses  of  an  extended  foreign  tour, 
leaving  his  creditors  —  not  defrauded. 

The  conservation  of  the  home,  as  the  purpose  or  policy  of 
the  legislator  in  cutting  off  creditors,  is  thwarted  by  such  a 
proceeding  on  the  part  of  the  beneficiary.  Were  the  question 
(whether  a  sale,  under  the  circumstances  suggested,  is  home- 
stead abandonment)  a  pristine  one,  it  might  reasonably  be 
answered  in  the  affirmative;  but  the  decisions  must  be  fol- 
lowed. 

Cases  will  arise,  however,  with  their  ever  new  and  curious 
combination  and  correlation  of  facts,  touching  the  rights  of 
creditors  relative  to  fraudulent  homestead  conveyances,  which 
none  of  the  numerous  deliverances  heretofore  made  will  be 
found  to  govern.  New  conflicts,  between  principles  long  es- 
tablished and  those  that  have  sprung  to  being  to  meet  the 
exigencies  of  homestead  legislation,  will  inevitably  be  precipi- 
tated. Some  of  them  will  involve  the  surrender  of  homestead 
by  sale  for  other  purposes  than  the  furtherance  of  the  legis- 
lative policy.  The  present  decisions,  holding  that  homestead 
sales  and  delivery,  when  set  aside  for  fraud,  do  not  divest  the 
beneficiaries  of  their  immunities  under  the  legislative  policy  — 
do  not  inure  to  the  benefit  of  creditors,  but  leave  the  fraudu- 
lent grantors  with  all  their  original  titles  and  privileges  in- 
tact —  may  not  prove  broad  enough  to  cover  every  fresh  case 


538  FRAUD. 

hereafter  arising  and  presenting  original  questions  along  this 
line. 

Without  any  change  of  the  statutes  as  they  now  stand,  the 
courts  will  be  brought  to  additional  expositions  to  meet  such 
questions.  As  the  statutes  are  now,  and  as  the  expositions 
are  now,  creditors  have  the  right  to  inquire  into  transfers  of 
homesteads  to  see  whether  their  interests  are  affected  or  not. 
Given,  tliat  the  exemption  exists,  they  have  no  interest  in 
such  a  homestead,  and  therefore  cannot  be  defrauded,  it  is 
held  —  it  is  settled  ;  but  it  is  open  to  their  inquiry  whether 
exemption  does  still  exist,  in  any  particular  case  in  which  they 
would  be  interested  upon  the  establishment  of  the  negative. 
"Fraud  without  injury  will  not  support  an  action,"  it  is  said; 
but  whether  there  is  injury  is  an  open  question.  And  the  in- 
vestigation may  tend,  under  some  combination  of  circum- 
stances, to  impair  the  theory  of  the  felicitous  impossibility  of 
fraud  on  the  part  of  the  exemptionist  towards  his  creditors.^ 

"When  a  question  of  fraud  is  involved,  the  rule  of  construc- 
tion is  liberal  to  meet  the  miscliief  and  advance  the  remedy.^ 
If  there  are  two  mischiefs  to  be  met  —  fraud  and  family  dis- 
integration —  the  first  application  of  the  rule  should  be  to  de- 
feat the  fraud,  since  it  is  manifestly  the  greater  evil.^  If  this 
order  of  the  application  of  the  rule  were  invariably  observed, 
there  would  be  fewer  attempts  on  the  part  of  homestead  claim- 
ants to  succeed  in  doubtful  cases,  involving  questions  of  fraud, 
with  the  hope  of  having  their  lacking  claims  pieced  out  by 
liberal  construction. 

1  See  ch.  XXVII,  sec.  3.  a  Colorado  case,  needs  this  qualifica- 

2  Ante,  p.  42.  tion. 

3  The  statement  on  page  515,  from 


CHAPTER  XYII. 

WAIVER 


1.  Inalienable  Eights. 

2.  Pie-agreement  to  Waive. 

3.  Inchoate  Rights. 

4.  Rights  of  Douer  and  Homestead. 

5.  No  Waiver  of  Others'  Rights. 

6.  Optional  Exemption. 

7.  Special  Waiver. 


§  8.  Absolute  Waiver  by  Mortgage. 
9.  Lien    Not  Waived    by    Taking 
Security. 

10.  Usury  AlTocting  Wai'-or. 

11.  Mode  of  Release. 

12.  Pleading  Waiver. 


§  1.  Inalienable  Rights. 

Rights  of  defense  when  life,  liberty  or  property  are  assailed 
cannot  be  denied  by  courts  because  they  have  been  relin- 
quished anterior  to  the  time  of  attack.  Rights,  not  only 
natural  but  legal,  which  are  given  for  defense,  cannot  be  ab- 
jured by  the  beneficiary  so  as  to  deprive  courts  of  the  power 
to  enforce  them  when  subsequently  pleaded.  Remedies  con- 
ferred by  law  cannot  be  waived,  by  mere  agreement  not  to 
claim  them,  so  as  to  divest  courts  of  the  duty  of  according 
them  if  they  be  afterwards  claimed  by  one  of  the  contracting 
parties. 

"  AVaiving  all  defense  to  this  note  should  it  be  sued  upon : " 
would  that  prevent  the  maker  from  exercising  his  law-given 
right  of  defense  in  case  of  suit?  Certainly,  his  promise  not 
to  answer  would  not  authorize  the  court  to  disregard  his  an- 
swer when  subsequently  filed,  nor  relieve  it  of  the  duty  of 
giving  the  defense  all  the  consideration  it  would  have  been 
entitled  to,  had  no  such  promise  been  inserted  in  the  note. 

So  of  any  executorv  agreement  to  refuse  to  avail  one's  self 
of  any  right  or  remedy  given  by  law,  when  the  time  to  claim 
it  shall  arive.  The  waiver  of  "  any  relief  whatever  from  ap- 
praisement or  valuation  laws  "  is  void.  An  agreement  never  to 
take  the  benefit  of  the  bankrupt  law  w^ould  be  void.  So,  not  to 
redeem  forfeited  land;  not  to  plead  prescription, and  the  like.' 

1  Moxley  v.  Ragan,  10  Bush,  158  Home  Ins.  Co.  v.  Morse,  20  Wall. 
(said  in    argument  by    the    court);    451;  Hopt  v.  Utah,  110  U.  S.  579; 


540  WAIVER. 

On  the  other  hand,  there  are  rights  which  may  be  waived 
before  the  occasion  for  exercising  them  has  arisen.  An  in- 
dorser  may  waive  notice  of  protest,  in  advance. 

There  are  remedies  enforceable  by  courts  which  may  be 
waived  by  parties  in  their  conventions,  for  adequate  consider- 
ation, so  that  they  cannot  be  afterwards  enforced  by  courts 
for  the  reason  tliat  the  interested  contracting  parties  are 
estopped  from  pleading  them.  The  waiving  party  has  had  his 
equrv^alent  for  the  surrender  of  his  right  No  interest  of  the 
state  or  of  others  beino;  affected,  the  agreement  will  stand 

CD  ?  O 

and  the  relinquishment  be  respected. 

No  consideration  or  equivalent  can  be  considered  or  re- 
spected by  the  court  when  rights,  such  as  those  above  in- 
stanced (right  of  defense  of  life,  liberty  and  property;  of 
defending  a  suit,  pleading  prescription,  claiming  appi'aisement, 
redeeming  forfeited  lands,  taking  the  benefit  of  a  bankrupt 
law),  have  been  bartered  aw^ay.  Many  like  illustrations  might 
be  adduced.  Such  waivers  are  not  legalized  by  any  consid- 
eration promised  to,  or  received  by,  the  relinquisher.  They 
are  against  public  policy  and  void. 

A  general  waiver,  in  a  contract  of  lease,  of  "  all  laws  or 
usages  exempting  any  property  from  distress  or  execution  for 
rent,"  was  sustained.  The  court  said  it  was  "  a  waiver  as  to 
the  debt,  not  merely  the  property  liable  to  distress.  .  .  . 
It  would  be  difficult  to  frame  a  broader  exemption."  ^  It  was 
a  waiver  of  the  law  as  broad  as  it  could  be. 

§  2.  Pre-agreement  to  Waive. 

The  doctrine  is  largely  held,  if  not  fully  established,  based 
on  public  pojicy,  that  the  right  to  claim  such  personal  prop- 
erty as  the  law  exempts  cannot  be  waived  in  an  executory 
contract;  that  a  clause  in  a  promissory  note,  or  other  written 
obligation,  in  terms  waiving  the  benefit  of  exemption  laws,  is 
entirely  nugatory  and  inefl'ectual,  so  far  at  least  as  chattel  ex- 
emption is  concerned.  The  policy  of  the  law,  in  thus  striking 
such  present  surrenders  of  futute  protection  with  nullity,  is  in 
consideration  of  the  possible  needs  of  the  obligor's  family,  the 

State  V.  Stewart,  89  N.  C.  503 ;  Swart  (Mitchell  v.  Crates,   47  Pa.  St.  203, 

V.  Kimball.  43  Mich.  448 ;  Caucemi  distinguished.)    See  Hagenian  v.  Sal- 

V.  People,  18  N.  Y.  135.  isberry,  74  Pa.  St.  280. 
iBeatty  v.  Rankin,  139  Pa.  St  358, 


PKE-AGREE.MENT   TO    WAIVE.  541 

improvidence  of  many  persons  when  making  contracts  to  be 
consummated  in  the  future,  and  the  interests  of  the  state  in 
obviating  pauperism.  Such  reasons,  and  perhaps  others,  are 
found  in  the  opinions  of  judges  who  hold  the  hiw  settled  that 
though  a  debtor  may  sulTer  his  exempt  chattels  to  be  sold  un- 
der execution  when  the  time  of  sale  has  arrived,  he  cannot 
agree  to  do  so  when  contracting  the  debt  which  may  ulti- 
mately be  prosecuted  to  judgment.' 

This  doctrine  is  not  universally  held.  It  needs  qualification, 
as  stated  above,  even  in  states  w^here  the  waiver  of  chattel 
exemption  is  not  allowed.  It  evidently  should  be  confined  to 
general  v/aiver ;  and  that  is  doubtless  the  view  of  the  courts 
rendering  most  of  the  above-cited  decisions.  The  usual  ex- 
emption statute,  with  reference  to  chattels,  provides  that 
w^orking  utensils  to  a  certain  value,  or  beds  and  bedding,  or  a 
horse  or  yoke  of  oxen,  or  fuel  and  provisions  stored  in  the 
dwelling  for  family  use  in  reasonable  quantity,  or  all  of  these, 
or  other  things  generally  described,  shall  be  exempt  from  sale 
on  execution.  That  the  right  to  claim  the  benefit  cannot  be 
relinquished  before  the  time  for  claiming  it  comes,  is  the  pur- 
port of  those  decisions. 

There  is  no  prior  setting  apart  of  a  particular  horse  or  yoke 
of  oxen,  or  any  specified  thing  to  be  branded  or  labeled  as 
exempt.  The  owner  may  sell  any  horse  that  he  has,  or  pawn 
or  pledge  him,  or  subject  anything  to  a  chattel  mortgage  and 
thus  cut  himself  off  from  claiming  exemption  as  to  that  thing. 
When  the  sheriff  comes  he  may  have  a  horse,  a  cow,  a  box  of 
tools,  a  bed  —  whatever  the  articles  exempt  —  reserved  to  him. 
So,  it  is  not  wholly  true  that  chattel  exemption  may  not  be 
waived ;  and  there  are  authorities  not  only  holding  this,  but 
favoring  general  waiver  as  to  such  property .- 

1  Kneetle  v.   Newcomb,   33   N.   Y.  La.  Ann.  333 ;  Curtis  v.  O'Brien,  20 

249  ;  S.  C,  78  Am.  Dec.  186  ;  Harper  la.  376  ;  Branch  v.  Tomlinson,  77  N.  C. 

V.  Leal,    10   How.   Pr.    (N.   Y.)  283;  388;  Maxwell  v.  Eeed,  7   Wis.  582; 

Crawford  v.  Lockwood,  9  How.  Pr.  Beavan  v.  Speed,  74  N.  C.  544 ;  Denny 

(N.  Y.)  547 ;  Carter  v.  Carter,  20  Fla.  v.  White,  2  Cold.  284 ;  Moran  v.  Clark, 

558 ;  Blalock  v.  Elliott,  59  Ga.   837 ;  30  W.  Va.  358.     {See  Reed  v.  Bank, 

Moxley  v.  Ragau,  10  Bush,  156 ;  Recht  29  Gratt.  719,  on  Code  1873,  ch.  183, 

V.  Kelly,  83  111.  147  ;  Phelps  v.  Phelps,  §  3.) 

72  111.  545 :  Van  Wickle  v.  Landry,  2  Adams  v.  Bachert.  83  Pa.  St.  524 ; 

29  La.  Ann.  330;  Hardin  v.  Wolf,  29  O'Neil  v.  Craig,  56  Pa.  St.  161 ;  Beegle 


542  WAIVER. 

The  same  reasons,  which  forbid  the  waiver  of  the  right  to 
claim  the  legal  exemption  of  personal,  will  apply  to  real  prop- 
erty. The  arguments  drawn  froin  public  policy,  the  preven- 
tion of  pauperism,  the  protection  of  the  wife  and  children  of 
the  debtor,  and  the  need  of  guarding  the  impecunious  from 
their  own  incaution  when  giving  up  rights  before  the  occasion 
for  asserting  them  arises,  will  apply  to  the  one  class  of  prop- 
erty as  w^ell  as  to  the  other. 

The  doctrine,  therefore,  is  broader  than  the  statement  of  it 
made  at  the  beginning  of  this  section.  Exempt  realty  cannot 
be  rendered  non-exempt  by  a  general  agreement  to  waive  the 
privilege  before  the  time  for  claiming  it  has  arisen,  and  before 
the  right  has  attached  to  any  particular  land.  As  already 
said,  relative  to  personalty,  there  is  yet  nothing  branded  or 
labeled  as  exempt,  and  therefore  the  owner  is  free  to  sell  or 
mortgage  any  particular  tract,  getting  his  quid  pro  quo  and 
giving  up  all  right  of  claiming  exemption  to  the  injury  of  the 
party  with  whom  he  has  contracted.  In  states  where  no 
homestead  is  recognized  further  than  the  right  of  the  debtor 
to  claim  real  or  personal  property,  or  both,  to  a  given  amount, 
when  execution  is  pending  against  his  property,  there  is  little 
or  no  distinction  between  the  chattel  and  the  real  estate  ex- 
emption. 

A  husband  cannot  estop  himself  from  claiming  homestead 
by  so  stipulating  in  a^o^z^-nuptial  agreement  relative  to  the 
land  of  the  wife,  entered  into  with  her  prior  to  the  existence 
of  the  right  to  claim. ^ 

Neither  husband  nor  wife  can  waive  a  part  of  the  homestead 
fixed  by  law,  and  take  the  rest,  when  by  so  doing  the  rights 
of  others  would  be  invaded  or  destroyed.  In  illustration,  the 
court,  stating  this  principle  in  exposition  of  a  statute,  held 
that  a  widow  whose  homestead  was  a  life  estate  in  thirty  acres 
could  not  waive  it  and  take  less,  when  by  so  doing,  she  would 

V.  Wentz,  55  Pa.  St.  369 ;  Lauck's  Ap-  270 ;  Dow  v.  Cheney,  103  Mass.  181. 

peal,  44  Pa.  St.  395;   Shelley's  Ap-  See  Bowman  v.   Smiley,  31  Pa  St 

peal,  36  Pa.  St.  373;  Smiley  v.  Bow-  225;   S.  C,  72  Am.  Dec.  738,     And 

man,   3  Grant's   Cas.    132;    Case  v.  compare  Firmstone  v.  Mack,  49  Pa. 

Dunmore,  23  Pa.  St.  93 ;  McKinney  St.  387 ;  S.  C,  88  Am.  Dec.  507. 

V.  Reader,  6  Watts,  40 ;  Butt  v.  Green,  i  Crum  v.  Sawyer,  132  111.  443. 
29  O.  St.  667 ;  Frost  v.  Shaw,  3  O.  St 


INCHOATE    RIGHTS.  543 

add  to  the  realty  to  be  distributed,  in  which  slic  had  a  third 
interest  in  fee,  and  this  woukl  give  herself  ten  acres  absolutely 
to  the  injury  of  the  distributees.^ 

§  3.  Inchoate  Rights. 

Suppose  an  unmarried  man  owns  real  estate  and  has  the 
right  of  becoming  the  beneficiary  of  homestead  exemption 
under  an  existing  law  upon  complying  with  the  conditions  of 
family  headship  and  oecupancy:  may  he  now  waive  the  in- 
choate right  of  exemption? 

Such  an  owner  mortgaged  a  thousand  acres  of  land,  insert- 
ing in  the  deed:  "  I  hereby  waive  all  right  to  homestead  in 
the  above  described  land."  About  two  years  afterwards  he 
married.  Ten  years  after  the  waiver,  the  land  Avas  levied 
upon  by  the  mortgagee  and  the  mortgagor  claimed  that  he 
had  homestead  right  in  it.  The  claim  was  made  in  connec- 
tion with  alleged  rights  acquired  in  prior  bankrupt  proceed- 
ings, but  the  case,  so  far  as  useful  here  for  illustration,  may 
be  taken  free  from  that  complication. 

The  court  answered  the  above  question  in  the  affirmative. 
It  had  been  urged  in  argument  that  the  mortgagor,  not  being 
the  head  of  a  family  when  the  mortgage  was  executed,  had 
then  no  homestead  right  and  therefore  could  waive  none.  The 
court  admitted  that  he  then  had  no  complete,  unconditional 
right,  but  insisted  that  he  had  an  inchoate  or  contingent  right, 
and  that,  in  waiving  "  all  right,"  he  gave  up  that,  so  as  to  dis- 
able himself  from  perfecting  it  by  subsequent  marriage."- 

In  most  of  the  states  the  mortgage,  considered  as  a  species 
of  alienation,  made  by  an  owner  who  had  the  right  to  make 
it,  and  Avho  had  no  wife  to  join  with  him  in  the  act ;  made  at 
a  time  when  no  homestead  right  had  attached  to  any  part  of 
the  large  tract,  would  not  so  much  as  require  any  express 
waiver  to  pass  the  property  subject  to  the  right  of  redemp- 
tion. Certainly,  he  could  have  sold  the  land  unconditionally 
without  any  waiver,  and  would  thus  have  divested  himself  of 
all  right  to  or  in  it,  present  or  future. 

1  Mintzer  v.  St.  Paul  Trust  Co.,  45        2  Broach  v.  Powell,  79  Ga,  79,  83. 
jMiim.  323.    See  Egbert  v.  Egbert  (la.), 
r,3  N.  W.  478. 


544  WAIVER. 

The  partial  analogy  between  homestead  waiver  and  quit- 
claim has  been  recognized.^  If  we  extend  the  latter  to  con- 
tingent interests,  will  the  analogy  still  exist?  The  court,  in 
the  case  cited  above  the  last,  said :  "  If  a  quitchdm  can  operate 
only  where  some  estate  is  in  esse  at  the  time  it  is  executed, 
then  there  certainly  can  be  no  quitclaim  to  a  homestead  by 
waiver  at  all;  for  before  the  homestead  is  allowed  the  home- 
stead estate  is  not  in  being,  and  after  it  is  allowed  there  can 
be  no  waiver.  The  moment  the  homestead  right  becomes  a 
complete  vested  right,  it  is  no  longer  waivable,  for  nothing 
will  vest  it  short  of  securing  the  homestead.^  Up  to  that  stage 
the  right,  no  matter  how  perfect  the  conditions  for  its  exercise 
may  be,  is  a  mere  grace  or  privilege,  and  it  may  be  abjured 
or  renounced  as  well  under  incomplete  conditions  as  under 
complete  ones."^  So  the  court  held  that  homestead  waiver 
by  an  unmarried  man  will  bar  his  right  to  homestead  when 
he  afterwards  becomes  married,  and  the  head  of  a  family,  so 
as  to  render  his  inchoate  right  complete. 

It  is  well  settled  in  the  state  of  this  decision,  that  homestead 
right  may  be  waived  as  to  specified  property  when  it  is  sub- 
jected to  lien,  as  the  court  pointed  out.* 

The  renunciation  of  rights  infuturo  has  no  effect,  as  a  gen- 
eral rule.  The  right  to  homestead,  dependent  upon  the  con- 
ditions of  ownership,  family  headship,  occupancy,  and  dedica- 
tion, or  upon  any  one  of  these,  can  hardl}^  be  properly  called 
an  existing,  inchoate  right  before  compliance  with  the  neces- 
sary conditions  or  condition.  A  contract,  however  solemn  in 
form,  by  which  a  party  should  agree  to  debar  himself  from 
claiming  exemption  in  property  afterwards  to  be  acquired, 
would  not  be  worth  the  wear  of  his  pen  point  in  writing  it. 

§  4.  Rights  of  Dower  and  Homestead. 

Though  dower  may  be  waived,  it  has  been  held  that  where 
homestead  right  vests  in  the  widow  by  statute  on  the  death 
of  her  husband,  that  right  cannot  be  waived  in  an  ante-nuptial 

1  Tribble  v.  Anderson.  63  Ga.  54-5,  Statford  v.  Elliott,  59  Ga.  838 ;  Allen 

2  Citing  Harris  v.  Glenn,  56  Ga.  94.  v.   Frost,   59    Ga.   558 ;    Flanders  v. 

3  Broach  v.  Powell,  79  Ga.  84 ;  Bor-  Wells,  61  Ga.  195 ;  Smith  v.  Shepherd, 
oughs  V.  White,  69  Ga.  842.  63  Ga.  454 ;  Jackson  v.  Parrott,  67 

<  Simmons  v.  Anderson,  56  Ga»  53 ;    Ga.  210. 


NO    WAIVEK    OF    OTHEKS'    RIGHTS,  545 

contract,  because  it  is  not  existent  at  the  time  the  contract  is 
made.^  She  is  not  estopped  from  asserting  a  statutory  right 
which  arises  after  such  contract,  on  the  ground  that  she  would 
thus  violate  an  executory  covenant.^  She  cannot  waive  her 
right,  subsequently  arising,  to  a  future  demand.' 

A  release  by  a  wife  of  her  "  rights  under  the  homestead  ex- 
emption act "  is  not  a  renunciation  of  her  dower  right.  Though 
she  joins  her  husband  in  giving  a  mortgage,  and  there  is  no  ex- 
press reservation  of  the  dower  right,  it  will  not  be  presumed 
that  a  renunciation  of  it  was  designed  when  there  is  an  ex- 
pressed purpose :  the  release  of  the  homestead  right.  Were  she 
to  convey  her  homestead  right  of  life  estate  in  the  premises  to 
the  grantee,  there  would  be  an  inconsistency  in  the  retention 
of  the  dower,  which  is  also  a  life  estate.  But  release  on  her 
part  of  homestead  right  is  not  conveyance  to  the  grantee. 
"  The  effect  of  the  deed  in  question  "  (as  was  said  in  an  illus- 
trative case)  "  was  to  convey  to  the  mortgagee  the  estate  de- 
scribed in  it,  freed  from  the  right  of  the  grantors  to  claim  it 
as  a  homestead ;  but  it  did  not  affect  the  wife's  inchoate  right 
of  dower,  and  does  not  bar  her  from  claiming  dower  after  her 
husband's  death."  * 

A  general  conveyance  by  husband  and  wife,  with  dower 
right  released  by  her,  is  not  a  release  of  the  homestead  right 
upon  which  the  deed  is  silent.* 

A  widow  was  held  to  have  waived  her  claim  for  homestead, 
when  she  had  applied  for  and  received  her  dower,  but  made 
no  application  for  homestead  till  five  years  thereafter.  ^ 

§  5.  No  Waiver  of  Others'  Rights. 

The  owner  cannot  waive  any  vested  rights  of  his  wife  and 
children.  When  by  law,  through  his  dedication  of  his  own 
property  as  a  homestead,  they  become  entitled  to  certain 
rights  or  interests  in  it,  he  alone  cannot  deprive  them  of  it  by 
any  agreement  to  forego  claiming  exemption.  Where  "  estate 
of  homestead  "  is  created  with  this  effect  in  favor  of  the  wife, 

I  Mann  v.  Mann's  Estate,  53  Vt  48.  citing  Greenough  v.  Turner,  11  Gray, 

2J6.;  Gibson  v.   Gibson,  15  Mass.  332;  Learned  v.  Cutler,   18  Pick.  9. 

106 ;  Sullings  v.  Richmond,  5  Allen,  See  Smith  v.  Carmody,  137  Mass.  126. 

187.  5  Hayden  v.  Robinson,  83  Ky.  615. 

^  Hastings  v.  Dickinson,  7  Mass.  153.  ^  Burch  v.  Atchison,  82  Ky.  585. 

♦Tirrel  v.  Kenney,   137  Mass.  30, 
35 


546  WAIVER. 

and  where  beneficiaries  other  than  the  owning  head  of  the 
family  have  such  rights,  interests  or  privileges  conferred 
though  there  be  no  such  "estate"  recognized,  the  owner  alone 
cannot  waive  exemption  to  their  injury. 

No  such  act  on  the  part  of  a  husband  or  father,  or  of  a 
wife  or  widow,  or  of  any  person,  as  might  estop  him  or  her 
personally  from  claiming  a  homestead  right,  can  possibly  debar 
others,  who  have  rights  therein,  from  their  interest.  Such 
rights  of  others  render  his  own  inviolable,  since  they  are  in- 
separable from  his.  What  might  be  an  act  in  pais  operating 
as  an  estoppel,  were  he  alone  concerned,  would  not  be  such 
when  the  rights  of  those  to  be  protected  through  him  are  in- 
volved. He  would  not  be  estopped  from  claiming  homestead, 
though  he  had  solemnly  promised  not  to  claim,  and  had  re- 
ceived a  consideration  equivalent  to  the  value  of  his  right.^ 

A  wife  may  release  her  homestead  interest  when  joining 
with  her  husband  in  giving  a  mortgage,  deed  of  trust  or  ab- 
solute conveyance.^  But  without  her  consent,  evidenced  by 
her  signature  to  the  deed  duly  executed,  the  wife  cannot  be 
deprived  of  her  homestead  right.' 

Where  the  exemption  is  for  the  protection  and  benefit  of 
the  wife  and  children  as  well  as  himself,  the  husband  cannot 
waive  the  right  of  homestead.^ 

If  the  situation  were  such  that  he  could  relinquish  his  own 
exemption  privilege  without  impairing  that  of  others,  he 
might  be  held  to  his  agreement  to  waive  it.  There  are  cases 
in  which  the  beneficiary  may  relinquish  without  affecting 
others'  rights.  A  widow  may  release  all  rights  in  and  to  her 
deceased  husband's  estate,  including  that  of  homestead,^  but 
she  cannot  impair  the  minor  children's  rights." 

^  Showers    v.   Robinson,   43   Mich,  istered.  Kennedy  v.  Stacy,  1  Bax.  220. 

502,  613.  Registry  not  required  by  latter  act. 

2Atwater  v.  Butler,  9   Bax,  299;  Deatherage  v.  Walker,  11  Heisk.  45. 

Lover  v.  Bessenger,  9  Bax.  393.  <  Beecher  v.  Baldy,   7   Mich.   488 ; 

3  Williams  v.  Williams,  7  Bax.  116.  Dye  v.  Mann,  10  Mich.  291 ;  King  v. 
But,  prior  to  the  adoption  of  the  Ten-  Moore,  10  Mich.  538  ;  Snyder  v.  Peo- 
nessee  constitution  of  1870,  the  hus-  pie,  26  Mich.  106 ;  Comstock  v.  Corn- 
band  alone  could  alienate  the  home-  stock,  27  Mich.  97 ;  Sherrid  v.  South- 
stead  (Bilbrey  v.  Posten,  4  Bax.  232 ;  wick,  43  Mich.  515. 
Const.,  art.  11,  §  11 ;  Code,  §  2114a),  5  Mack  v.  Heiss,  90  Mo.  578. 
unless  it  had  been  set  apart  and  reg-  ^  Rhorer  v.  Brockhage,  86  Mo.  544 ; 


OPTIONAL    EXEMPTION.  547 

The  riglits  of  minor  children  arc  intrusted  to  the  keey)ing 
of  their  natural  guardians.  (Jrdinarily,  their  father  can  con- 
trol them,  even  to  the  abandonment  of  them.  So,  when  join- 
der by  the  parents  is  recjuired  in  the  sale  or  incumbering  of 
the  homestead,  they  represent  their  children  Both  together 
may  waive  homestead  right  so  as  to  cut  off  their  children's 
benefit,  where  waiver  is  permitted.  It  is  not  wholly  true, 
therefore,  that  the  rights  of  all  beneficiaries  are  unaffected  by 
waiver  in  which  they  have  no  voice.^ 

§  6.  Optional  Exomptiou. 

A  constitutional  ]>rovision,  that  "  any  husband  or  parent  re- 
siding in  this  state,  or  the  infant  children  of  deceased  parents, 
may  hold  a.  homei?tead  of  the  value  of  one  thousand  dol- 
lars .  .  .  exempt  from  forced  sale,  subject  to  such  regu- 
lations as  shall  be  prescribed  by  law,"  ^  was  held  not  to  con- 
fer, ex irroprio  vigore,  a  right  to  a  homestead.  It  simply  gave 
the  legislature  the  power  to  enable  the  resident  husband, 
parent  or  minor  orphans  to  claim  one.^ 

"  Here  is  clearly  no  countenance  given  to  the  idea  that  it  was 
the  design  of  the  constitution  to  take  awav  the  dominion  that 
the  owner  himself  had  over  his  property,  and  to  deny  him  the 
right  to  sell  or  incumber  the  homestead.  It  gave  him  the 
right  to  hold,  as  exempt  from  '  forced  sale,'  a  homestead.  .  .  , 
It  was  di.  irrvvllege  secured  to  him,  but  not  putting  his  property 
beyond  his  control."  ^ 

Exemptions  are  personal  privileges  granted  to  debtors. 
They  may  be  forfeited  by  fraud,  or  waived  by  contract  or 
neglect  to  claim  them.  They  may  be  surrendered  by  the 
beneficiaries.* 

Kochling  V.  Daniel,  82  Mo.  54;  Rog-  ^Speidel   v.   Schlosser,   13    W.  Va. 

ers  V.  Mayes,  84  Mo.  520;  Roberts  v.  686;  Holt  v.  Williams,  13  W.  Va.  704. 

Ware,  80  Mo.  363 ;  Friiend  v.  McCall,  •«  Moran  v.  Clark,  30  W.  Va.  358, 

73  Mo.   343;  French  v.   Stratton,  79  378. 

Mo.  560;  Skouten  v.  Wood,  57  Mo.  ^Bowen    v.    Bowen,   55    Ga.  182; 

380;  Booth  v.  Goodwin,  29  Ark.  633;  Pratt  v.  Burr,  5  Biss.  36;  Hewes  v. 

Johnson    v.    Turner,    29    Ark.    280;  Parkman,   20  Pick.   90;  Brackett  v. 

Phipps  T.  Acton,  12  Bush,  375;  Plate  Watkius,  21  Wend.  68;  Lauck's  Ap- 

V.  Koehler,  8  Mo.  App.  396.  peal,  12   Harris   (Pa.).  426 :    Case  v. 

'  Harpending's  Ex'rs  v.  Wylie,  13  Dunmore,  11  Harris  (Pa.),  93;  Bow- 
Bush,  158.  yer's    Appeal,    9  Harris  (Pa.),    210; 

-  Const  W.  Va.,  art  6,  §  48.  Hammer  v.  Freese,   7   Harris  (Pa.\ 


548  WAIVER. 

§  7.  Special  Waiver. 

Where  exemption  embraces  both  realty  and  personalty,  the 
owner  may  specify  certain  articles  of  personalty  or  portions  of 
the  realty  as  released  from  the  exemption ;  he  may  waive  his 
right  and  allow  a  lien  to  be  created  on  the  excepted  property.' 

The  waiver  of  the  homestead  right  in  favor  of  a  mortgagee 
is  not  a  general  waiver,  opening  the  door  to  all  creditors.- 
The  usual  release  clause  is  understood  to  be  made  with  refer- 
ence only  to  the  mortgagee  of  the  instrument  though  not  con- 
fined to  him  in  terms. 

The  release  by  the  parents  binds  the  children  so  that  they 
cannot,  after  foreclosure,  claim  the  homestead  right.^  If  the 
mother  has  joined  the  father  in  the  grant  and  waiver,  the 
homestead  relinquishment  is  complete.^ 

A  waiver  of  homestead  immunity  with  reference  to  a  par- 
ticular debt  cannot  be  treated  as  a  general  waiver.^  But 
when  the  homestead  holder  has  purposely  allowed  his  home 
to  be  sold  to  pay  a  debt,  thus  waiving  exemption  as  to  that 
debt,  the  purchaser  cannot  set  up  the  grantor's  right  of  ex- 
emption. Any  third  party,  not  in  privity  with  the  grantor 
who  thus  waives,  is  incompetent  to  claim  the  benefit  of  that 
exemption  which  has  thus  been  renounced.^ 

255;  Hutchinson  v.  Campbell,  1  son,  supra.  A  waiver  in  general 
Casey  (Pa.),  273;  McKinney  v.  terms  embraces  all  that  is  not  ex- 
Reader,  6  Watts  (Pa.),  34.  cepted  by  law.  Wilson  v.  McMillan, 
1  Broach  v.  Powell,  79  Ga.  79 ;  80  Ga.  733.  In  a  mortgage,  the  state- 
Green  V.  Watson,  75  Ga.  472 ;  Bor-  ment  that  right  of  homestead  is 
oughs  V.  White,  69  Ga.  842 ;  Jackson  waived  is  not  a  general  waiver. 
V.  Parrott,  67  Ga.  210 ;  Flemister  v.  description  of  property  waived  is 
Phillips,  65  Ga.  676 ;  Smith  v.  Shep-  necessary.  Smith  v.  Shepherd,  63  Ga. 
herd,  63  Ga.  454 ;  Flanders  v.  Wells,  454. 

61  Ga.  195 ;  Stafford  v.  Elliott,  59  Ga.  2  McTaggert  v.  Smith,  14  Bush,  414. 

838 ;  Allen  v.  Frost,  59  Ga.  558 ;  Sim-  3  Harpending's  Ex'rs  v.  Wyhe,  13 

mons  V.  Anderson,  56  Ga.  53 ;  Bowen  Bush,  158. 

V.  Bowen,  55  Ga.   182.     Under  the  *  McGrath  v.  Berry,  13  Bush,  391. 

present  constitution   of  Georgia  the  The  husband  alone  can  convey  the 

beneficiary  can  waive  exemption  as  fee  in  Kentucky  by  voluntary  sale, 

to  all  his  property  (except  a  small  lb. 

amount  therein  reserved),  by  a  gen-  5  Hall  v.  Fulgham,  86  Tenn.  451. 

eral  act  of  waiver.    Flemister  v.  Phil-  See  Rayburn  v.  Norton,  85  Tenn.  351 ; 

lips  and  Boroughs  v.  White,  supra.  Enochs  v.  Wilson,  11  Lea,  228;  Hilde- 

Under  the  constitution  of  1868,  he  brand  v.  Taylor,  6  Lea,  659. 

could  not  do  so  by  general  waiver.  « Cumnock    v.    Wilson    (Neb.),    50 

Stafford  v.  Elliott  and  Green  v.  Wat-  N.  W.  959. 


ABSOLUTK    WAIVKK    15V    MOKTCrAGE.  549 

A  husband  who  legally  waives  his  exem])tion  right,  before 
or  after  his  homestead  has  been  set  apart  (where  he  constitu- 
tionally can  do  so),  renders  his  home  liable.  If  he  waive  it 
with  reference  to  a  particular  debt,  he  cannot,  nor  his  wife, 
his  widow,  or  his  orphan  minor  children,  set  up  homestead 
right  against  that  debt.' 

Waiver  may  be  general  or  partial.  If  the  beneficiary  means 
to  relinquish  only  part  of  his  homestead,  he  should  specify 
and  describe  the  part  which  he  relieves  from  exemjition.^ 

Any  verbal  promise,  by  one  entitled  to  homestead,  that  he 
will  not  claim  it,  is  void,  whatever  the  consideriition  promised 
or  paid.  Even  a  sale  effected  by  an  administrator,  at  the  in- 
stigation of  the  homestead  beneficiary  w^ho  received  the  price 
from  one  induced  to  buy  on  the  assurance  that  the  homestead 
right  would  not  be  claimed,  was  held  not  to  oust  the  bene- 
ficiary (a  widow)  of  her  right  to  claim  it  subsequently.^ 

§  8.  Absolute  Waiver  by  Mortgage. 

The  doctrine  forbidding  the  waiver  of  certain  future  rights 
does  not  affect  the  power  of  parties  to  make  a  present  and 
complete  waiver  of  exemption  by  means  of  a  mortgage  or 
other  form  of  creating  a  lien  upon  exempt  property  when 
there  is  no  legal  inhibition.  The  creation  of  a  present  lien, 
the  waiver  of  a  right  in  this  way,  when  contracting  (not  a 
promise  to  waive  when  the  time  for  asserting  the  right  may 
arise),  is  free  from  the  reasons  given  for  denying  waiver  by 
mere  promise  not  to  avail  one's  self  of  legal  rights.  Whether 
chattel  exemption  or  land  exemption  be  Avaived  in  this  way, 
the  rule  is  the  same.  The  owner's  right  to  raise  money  by, 
chattel  mortgage  would  be  cut  off,  if  he  could  subsequently 
repudiate  the  lien  on  the  plea  that  the  hypothecated  thing  is 
exempt  from  sale  under  foreclosure. 

Can  an  exemptionist  mortgage  his  property,  which  the  law 
frees  from  liability  for  his  debts,  to  a  particular  creditor  when 

1  Linkenhoker   v.   Detrick,  81  Va.  constitution  as  construed  in  the  de- 

44;  Const.  Va.,  art  11,  g  1 ;  Code  Va.  cisions    above    cited,   especially  the 

18T3,  cli.  183 ;  Reed  v.  Union  Bank,  first. 

29   Gratt.    719;  White  v.   Owen,  30  2  Neely  v.  Henry,  68  Ala.  261. 

Gratt.  43.     In  Virginia,  the  jus  dis-  *  Showers    v.   Robinson,   43  Mich. 

ponendi  of  the  property  owner  ex-  502,  512;  Ring  v.  Burt,  17  Mich.  465; 

tends  to  his  homestead,  under  the  Clark  v.  Evarts,  46  la.  248. 


550 


\VA1\  Kli. 


there  is  no  statutory  inhibition?  That  is,  can  he  now  agree 
that  such  property  shall  be  non-exempt  so  far  as  concerns  the 
particular  creditor  with  whom  he  contracts  and  the  particular 
debt  which  he  agrees  to  secure?  The  answer  is  in  the  affirm- 
ative, with  reference  to  his  homestead.  Many  statutes  forbid 
such  hypothecation,  unless  the  wife  join  in  the  deed ;  some 
forbid  it  altogether ;  but  —  statutory  inhibitions  aside  —  the 
settled  rule  is  that  he  can.' 

The  decisions  seemingly  exceptional  to  this  rule  are  not 
all  really  so,  since  they  are  based  on  peculiar  statutes  or 
constitutional  provisions.-  Exemption  being  waived,  and  the 
property  mortgaged,  the  mortgagor  cannot  afterwards  resist 
foreclosure  and  sale  under  bankruptcy  proceedings.  The  mort- 
gage becomes  superior  to  the  homestead  right  by  the  waiver.^ 

When  exemption  has  been  legally  waived,  and  the  prop- 
erty sold  at  the  same  time  or  afterwards,  the  purchaser  may 


iMoran  v.  Clark,  30  W.  Va.  358, 
368;  Bank  v.  Lyons,  53  Miss.  181; 
Wing  V.  Cropper,  35  111.  256 ;  Boyd  v. 
Cudderback,  31  111.  118;  Smith  v. 
Marc,  26  111.  150 ;  Jones  v.  Yoakam, 
5  Neb.  265 ;  Rector  v  Rotten,  3  Neb. 
171;  Gaine  v.  Casey,  10  Bush,  92; 
Brame  v.  Craig,  12  Bush,  404 ;  In  re 
Cross,  2  Dill.  820 ;  Godfrey  v.  Thorn- 
ton, 46  Wis.  677 ;  Stewart  v.  Mackey, 
16  Tex.  56 ;  S.  C,  67  Am.  Dec.  609 ; 
Smith  V.  Mallone,  10  S.  C.  39 ;  Jordan 
V.  Peak,  88  Tex.  429;  Dunker  v. 
Chidic,  4  Nev.  823;  Wise  v.  Will- 
iams, 88  Cal.  80. 

2  Van  Wickle  v.  Landry,  29  La. 
Ann.  330 ;  Lanahan  v.  Sears,  102  U.  S. 
318;  Samson  v.  Williamson,  6  Tex. 
101 ;  Black  v.  Rockmore,  50  Tex.  95 ; 
Jordan  v.  Peak,  38  Tex.  429. 

='  Broach  v.  Powell,  79  Ga.  79,  82. 
The  court  said :  "  The  exemption 
in  bankruptcy  left  the  title  of  the 
debtor  to  the  exempted  land  precisely 
as  it  was  before.  Bush  v.  Lester,  55 
Ga.  581;  Farmer  v.  Taylor,  56  Ga. 
559  ;  Broach  v.  Barfield,  57  Ga.  604 ; 
Burtz  V.  Robinson,  59  Ga.  768 ;  Lara- 
more    V.     McKinzie,     60    Ga.     534; 


Brady  v.  Brady,  67  Ga.  368 ;  Felker  v. 
Crane,  70  Ga,  484;  Anderson  v. 
Brown,  72  Ga.  713.  The  bankrupt 
law,  in  and  of  itself,  afforded  the 
land  no  protection  whatever  against 
the  specific  lien  upon  it  created  by 
the  mortgage,  notwithstanding  it  was 
duly  set  apart  as  the  bankrupt's  ex- 
emption. Long  V.  Bullard,  112  U.  S. 
617.  This  court,  however,  construing 
the  bankrupt  law  and  the  state  law 
together,  has,  by  a  very  liberal  con- 
struction, determined  that  as  to  ex- 
emptions in  banki'uptcy  measured  by 
the  latter  (and  so  are  all  exemptions 
of  land),  the  due  setting  apart  in 
bankruptcy  has  the  same  effect  in 
holding  off  prior  liens  (tliat  is,  liens 
existing  at  the  time  of  the  adjudica- 
tion), as  would  a  regular  setting  apart 
by  proceedings  before  the  ordinary 
in  the  method  prescribed  by  the 
homestead  statute.  Rushing  v.  Gause, 
41  Ga.  180 ;  Bush  v.  Lester,  55  Ga. 
582 ;  Benedict  v.  Webb.  57  Ga.  348 : 
Ross  v.  Worsham,  65  Ga.  624 ;  Brady 
V.  Brady,  71  Ga.  71 ;  Collier  v.  Simp- 
son, 74  Ga.  697." 


Ai;S(jI,L  li;    WAIVER    KY    MOKTGAGE.  651 

plead  the  waiver  against  a  subsequent  claim  of  exemption  by 
the  seller  or  his  privies.' 

The  waiver  of  exemption,  in  a  mortgage,  is  made  with  ref- 
erence to  the  mortgagee  only :  so,  on  foreclosure,  if  there  be  a 
surplus  after  the  satisfaction  of  the  mortgage,  it  is  unaffected 
by  the  waiver,  and  is  exempt  as  the  land  previously  was.  It 
is  not  open  to  junior  mortgagees  or  general  creditors,  since 
they  were  not  contemplated  in  the  waiver.^ 

Homestead  was  abandoned.  There  were  two  mortgages  on 
the  land  :  the  senior,  without  waiver  of  homestead  right;  the 
junior,  with  waiver.     The  senior  had  preference.' 

After  the  foreclosure  of  a  mortgage  releasing  homestead, 
made  by  husband  and  wife,  it  is  too  late  for  them  to  set  up  the 
nullity  of  the  conveyance  on  the  ground  that  the  wife's  ac- 
knowledgment was  not  in  accordance  with  the  statute,  after 
they  had  been  parties  to  the  action  of  foreclosure  and  failed 
to  plead  that  ground.^  Yet  "  it  is  well  settled  that  a  defend- 
ant entitled  to  a  homestead  may.  by  proper  proceedings,  even 
after  a  judicial  sale  in  an  action  to  which  he  was  a  party,  have 
it  or  the  proceeds,  not  exceeding  in  amount "  the  monetary 
limit,  "  set  apart  to  him.'' ' 

A  purchaser  of  land  at  an  administrator's  sale,  who  has  ob- 
ligated himself  to  the  administrator  for  the  full  price,  cannot 
afterwards  claim  homestead  in  the  land  and  have  the  price  of 
the  whole  purchase  reduced  by  deducting  the  value  of  the 
homestead.'' 

An  act  designed  to  prevent  the  specific  waiver  or  convey- 
ance of  the  homestead,  for  one  purpose,  from  being  used  for 
another  object,  does  not  affect  a  judgment-creditor's  right  to 
redeem  his  debtor's  homestead  from  a  mortgage  sale  of  it, 
though  the  homestead  right  had  been  waived   by  the   mort- 

1  Tappan  v.  Hunt,  74  Ga.  545.  *  Honaker  v.  Cecil,  84  Ky.  203.     As 

2  First  N.  Bank  v.  Briggs,  22  111.  to  nullity  on  that  ground.  Wing  v. 
App.  228 ;  People  v.  Stitt,  7  111.  App.  Hayden,  10  Bush,  276 ;  McGrath  v. 
294;  Trogden  v.  Safiford,  21  III.  App.  Berry,  13  Bush,  391. 

2!0;  McTaggart  v.  Smith,  14  Bush  » Hayden  v.  Robinsou.  83  Ky.  619; 

<Ky.).  414:  Colby  v.  Crocker,  17  Kas.  Crout  v.  Santer,  13  Bush,  442.    Limit 

527 ;  Quinn's  Appeal,  86  Pa.  St.  447 ;  is    $1,000    in     Kentucky.      See    ch. 

Hill  V.  Johnston,  29  Pa.  St.  362.  XXVIII,  §  2. 

^'Asher  v.  Mitchell,  9  Bradvv.  (Ill  6Lawson  v.  Priugle,  98  N.  C.  450. 
App.)  335. 


652  WAIVER. 

gagor.  A  junior  judgment-creditor  may  redeem  and  become 
subrogated  to  the  rights  of  the  purchaser,  so  that  the  home- 
stead will  pass  to  him  by  the  sheriff's  deed  on  execution  sale 
in  enforcement  of  his  judgment.^ 

§  9.  Lien  Not  Waived  by  Taking  Security. 

Lien  for  purchase-money  is  not  waived  by  the  assignment 
of  grantee's  notes,  where  it  is  carried  by  the  assignment  under 
the  law  of  the  place  of  the  transaction.  The  assignee  does 
not  waive  it  by  taking  personal  security,  unless  his  consent  to 
relinquish  his  lien  is  made  to  appear.  The  civil-law  rule  is 
inapplicable.  Here,  waiver  is  not  inferred  from  the  simple 
fact  of  taking  other  security  than  the  legally  hypothecated 
property,  but  is  a  matter  of  contract  and  intention  to  be  es- 
tablished by  evidence. 

The  assignee  stands  in  the  shoes  of  the  assigning  lien-holder, 
without  any  formal  transfer  of  the  lien ;  for  the  mere  passage 
of  the  note  from  hand  to  hand  carries  along  the  lien  incident- 
ally. "With  the  note  goes  all  the  remedies  and  equitable  rights 
which  the  original  lien-creditor  had.  The  continual  existence 
of  his  assignor's  personal  responsibility  is  not  essential.  The 
naked  fact  of  accepting  other  security  than  that  which  came 
to  the  assignee  with  the  note  is  neither  a  waiver  ^^r  se  of  the 
lien  on  his  part,  nor  is  it  any  indication  of  intention  to  waive 
it.  Though  the  assignee  take  a  new  note  for  the  one  assigned 
him,  it  stands  for  the  debt  created  by  the  purchase  of  the 
property  at  the  instant  of  the  purchase  or  prior,  No  land 
purchase  can  be  made  without  the  simultaneous  or  preceding 
creation  of  the  obligation  to  pay  the  price.^ 

"  Without  reference  to  liens  or  their  priority,  in  pursuance 
of  the  policy  which  forbids  the  assumption  of  another's  sub- 
stance in  procuring  a  homestead  without  remunerating  him, 
the  law  in  effect  declares  that  no  homestead  shall  be  exempt 
until  the  purchase-money  therefor  be  paid. 

1  Smith  V.  Mace  (III),  26  N.  E.  1093 ;  Henley  v.  Stemmons,  4  B.  Mon.  132 
111.  Pub.  Laws  (1.887),  p.  178 ;  111.  Rev.  Honore  v.  Bakewell,  6  B.  Mon.  67 
Stat.,  ch.  77,  §§  20-24.  Duncan  v.   Louisville,  13  Bush,  378 

2  Bradley  v.  Curtis,  79  Ky.  327;  Lusk  v.  Hopper,  3  Bush,  185;  Ren- 
Genl.  Stats.  Ky.,  ch.  38,  art.  13,  8  9;  nick  v.  Hendricks,  4  Bibb,  303 ;  Mack- 
Ripperdon  v.  Cozine,  8  B.  Mon.  460 ;  reth  v.  Symmons,  15  Ves.  348. 


ISUKY    AFFECTING    WAIVER.  ."i^.S 

"  And  so  long  as  it  can  be  traced,  no  matter  how  often  the 
evidence  of  the  liabihty  therefor  may  be  altered,  the  enforce- 
ment of  the  lien  for  its  payment  cannot  be  defeated  by  the 
homestead  plea,  unless  the  lien  has  been  waived  —  which  pre- 
sents a  question  of  intention  to  be  determined  by  the  facts  of 
the  case." ' 

No  presumption,  that  the  vendor's  lien  for  purchase-money 
is  waived,  is  created  by  his  taking  notes  for  the  price  in  which 
the  vendee  waives  the  exemption  of  his  personal  property. 
The  taking  of  the  notes  without  security,  on  the  contrary, 
leaves  the  vendor's  lien  on  the  realty  sold  by  him  in  full  force, 
unless  expressly  waived  by  him.  In  any  state  where  there  is 
a  presumption  of  waiver  on  the  vendor's  part  when  he  takes 
a  mortgage  on  other  property  to  secure  him,  or  takes  third 
persons  as  sureties,  it  is  only  removed  by  an  agreement  to  re- 
tain the  lien.2 

§  10.  Usury  Affecting  Waiver. 

Execution  was  issued  on  a  judgment  founded  on  a  promis- 
sory note  containing  a  waiver  of  homestead  exemption.  The 
defendant  had  pleaded  that  the  note  was  usurious  and  had  ad- 
duced evidence  tending  to  show  it ;  but  on  appeal  the  question 
was  treated  as  closed  by  the  judgment.  There  was  nothing 
in  the  note  or  the  record  to  show  usury.* 

A  woman  bought  land  and  gave  a  mortgage  upon  it  to  the 
grantor  to  secure  the  purchase-money  and  waived  homestead 
exemption.  After  foreclosure,  she  sought  to  show  that  there 
was  usury  in  the  contract  between  herself  and  the  grantor. 
The  court  denied  her.  She  should  have  pleaded  this  before 
foreclosure.  She  was  precluded  doing  so  subsequently,  when 
alleging  no  fraud,  mistake,  accident,  or  ignorance  of  the  usury : 
and  when  the  record  disclosed  no  usury.  The  court  applied 
to  her  the  general  doctrine,  applicable  when  homesteads  are 
involved  as  in  other  cases :  "  If  a  party  is  sued  at  law  and  has 
a  legal  defense,  he  must  avail  himself  of  it  at  law  pending  the 
suit,  and  cannot  afterwards  ask  for  relief,  unless  he  was  pre- 

^  Brady  v.  Curtis,  supra.  3  Stewart  v.  Stisher,  83  Ga,  297, 300; 

^Thompson  v.  Sheppard,  85  Ala,  McLaws  v.  Moore,  83  Ga.  177 ;  Oweu 

611,  615;  Woodall  v.  Kelly,  85  Ala.  v.  Gibson,  74  Ga.  465 ;  Hightower  v. 

3')8 ;  Chapman  v.  Peebles,  84  Ala.  283 ;  Beall,  66  Ga.  102. 
Tedder  v.  Steele,  70  Ala.  847. 


554  WAIVER. 

vented  from  so  pleading  bis  defense  by  fraud,  accident,  or 
the  act  of  the  adverse  party,  unmixed  with  negligence  on  his 
part." ' 

Had  the  judgment  shown  upon  its  face  that  the  rate  of  in- 
terest was  usurious,  the  homestead  w^ould  have  been  good 
against  the  judgment.^  For,  though  usury  does  not  so  vitiate 
a  mortgage  as  to  destroy  the  lien,  it  does  have  the  effect  of 
rendering  a  w^aiver  of  homestead  exemption  nugatory  when 
made  in  the  mortgage  note.'' 

"When  the  usury  is  pleaded  in  foreclosure  proceedings,  and 
proven,  there  may  be  judgment  for  the  law^ful  sum  due  with 
the  usury  purged  out.  It  was  judicially  said,  when  this  was 
done:  "This  recovery  is  not  inconsistent  with  the  invalidity 
of  the  mortgage  in  so  far  as  it  waived  homestead,  but  entirely 
consistent  therewith.  Indeed,  the  invalidity  follows  as  a  di- 
rect conclusion  from  the  adjudication  that  the  debt  and  the 
mortgage  security  are  affected.  That  a  void  waiver  w^ould 
become  valid  by  purging  out  the  usury  when  the  judgment 
of  foreclosure  was  rendered  is  a  proposition  than  which  none 
could  be  more  unsound.  The  mortgage  is  good  as  a  lien,  but 
there  has  been  no  adjudication,  and  can  be  none,  that  its  lien 
will  prevail  over  the  homestead  right.  With  respect  to  that 
right,  it  stands  just  as  it  would  had  no  waiver  been  inserted 
in  the  mortgage  deed.  Until  the  right  expires  or  has  run  out, 
there  can  be  no  enforcemeut  of  the  lien,  but  after  that,  event 
it  can  be  enforced."  * 

§  11.  Mode  of  Release. 

The  mode  of  incumbering  a  homestead,  pointed  out  by  stat- 
ute, must  be  substantially  followed,  under  pain  of  nullity.'^ 
No  mode  of  conventional  mortgage  of  the  homestead  can  be 
made  effective,  though  both  husband  and  wife  join  in  its  exe- 
cution, if  the  law  forbids  the  incumbering  of  such  property.^ 

iMcLawsv.  Moore,  83  Ga.  177-9 ;  *  Lowry    v.   Parker,    83    Ga.    341, 

Wingfield  v.  Rhea,  73  Ga.  477 ;  High-  Bleckley,  C.  J. 

tower  V.  Cravens,  70  Ga,  475;  Wat-  sBoycl  v,  Cudderback,  31  111.  113; 

kins  V,  Lawton,  69  Ga,  671 ;  Perry  v.  Wing  v.  Cropper,  35  111,  356 ;  Rich- 

McLendon,   62  Ga,   604 ;    Thomason  ards  v.  Chase,  3  Gray,  383. 

V.   Fannin,   54   Ga.   361;    Ga,    Code,  6  Van  Wickle  v,   Landry,   29   La, 

§§  2897.  3577.  Ann.    330 ;    Lanahan    v.   Sears,    102 

-  Cleghorn  v,  Greeson,  77  Ga,  343,  U,  S,   318  ;    Sampson  v.  Williams,  6 

8/6,;  Small  v.  Hicks,  81  Ga,  691,  Te.x,  101, 


MODE    OK    RKLKASK.  555 

Contractual  renunciation  of  homestead  is  only  efFected  by 
sale  of  the  property  or  some  equivalent  alienation,'  A  debtor 
who  has  made  a  void  agreement  to  waive  exempt/ion  may  feel 
bound  in  conscience  to  sell  his  home,  where  the  law  allows  its 
alienation,  and  when  the  rights  of  others  are  not  infringed ; 
or  to  stand  by  and  see  it  sold,  and  thus  redeem  his  void 
promise. 

In  a  deed,  duly  signed,  acknowledged  and  executed,  releas- 
ins:  certain  rights,  such  as  that  of  homestead,  it  is  not  sacra-  - 
mental  that  the  names  of  the  grantors  signing  should  be  in- 
serted in  the  body  of  the  instrument. - 

No  express  waiver  of  the  homestead  right  is  necessary  in  a 
deed  of  sale,  unless  required  by  statute  or  constitutional  pro- 
vision,* if  the  owner  has  not  given  away  his  ordinary  right  of 
alienation  in  accepting  the  terms  of  his  exemption  privilege. 

There  is  no  need  of  expressly  waiving  the  homestead  right 
in  a  deed  to  property  on  which  the  grantor  does  not  reside.* 
To  avoid  the  presumption  of  waiver,  or  the  consequence  of 
actual  waiver,  the  selection  should  be  before  sale,  and  the 
claim  within  the  law.^ 

Kequesting  a  creditor  to  attach  the  homestead  estops  the 
beneficiary  of  exemption  from  opposing  the  attachment  sub- 
sequently by  setting  up  such  exemption.^ 

1  Colvin  V.  Woodward,  40  La.  Ann.  deed.     Even  a  wife,  by  signing  and 

627.     The  Louisiana  constitution,  ar-  duly  acknowledging  a  deed  contaiu- 

ticle  222.  forbids  the  mortgaging  or  ing  relinquishment,  will  be   bound, 

waiving  of  homestead  rights,  but  al-  Yocum  v.  Lovell,  111  111.  212;  Miller 

lows  the  sale  of  homestead  property,  v.   Shaw,  103   111.   277 ;    Johnson   v. 

This  accords  with  Hardin  v.  Wolf,  29  Montgomery,  51  111.  185. 

La.  Ann.  333,  rendered  under  the  for-  3  Poole  v.  Gerrard,  65  Am,  Dec.  482, 

mer  constitution,   but  overruled  in  note  by  Mr.  Freeman. 

Nugent  V.  Carruth,  32  La.  Ann.  444,  ^Finlon  v.  Clark,  118  111.   32;  Sy- 

See  Van  Wickle  v.  Landry,  29  La.  monds  v.  Lappin,  82  111.  213. 

Ann.  330.  5  Clark  v,  Spencer,  75  Ala.  49;  Jar- 

-' Elliot   v..   Sleeper,   2  N.   H.    525;  rail  v.  Payne,  75  Ala.  577 ;  Barker  v. 

Woodward  v.  Seaver,  38  N.  H.  29 ;  Williams,   74  Ala.   331 ;    Wright  v. 

Lithgow  V.  Kaveuaugh,  9  Mass.  161 ;  Grabfelder,  74  Ala.  460 ;  Henderson 

Dentzel  v.  Waldie.  30  Cal.  138 ;  Arm-  v.    Tucker,    70  Ala.    381 ;    Martin   v, 

stiong  V,    Stovall,   26    Miss.    275;  3  Lile,  63  Ala.  406;  Tucker  v.  Hender- 

VVash.  Real  Prop.  266.    In  Illinois  the  son,   63   Ala.   280 ;  Bell   v,  Davis,  42 

release  of  the  homestead  right  is  not  Ala.  460 ;    Simpson   v.   Simpson,   30 

dependent  upon  the  insertion  of  the  Ala.  225. 

grantors'  names  in  the  body  of  the  ^  Parsons  v.  Cooley,  60  la.  268.    An 


556  '  WAIVER. 

There  must  be  special  acknowledgment,  by  the  wife,  of  her 
release  of  the  homestead  right.^ 

A  deed  of  the  homestead  in  escrow,  to  be  delivered  on  the 
grantee's  compliance  with  certain  conditions,  was  held  to  be 
a  release  of  homestead  rights  by  the  wife  who  had  signed  it.* 

§  12.  Pleading  Waiver. 

The  homestead  claim,  when  not  interposed  till  after  judg- 
ment and  order  to  sell  lands  described  in  the  complaint,  which 
include  the  homestead,  has  been  presumed  to  be  waived.^ 

Leaving  the  homestead  temporarily,  even  for  a  year,  after 
it  has  been  duly  claimed  and  recorded,  is  not  a  waiver  of  it, 
nor  will  it  work  forfeiture,  when  there  is  no  design  to  aban- 
don it."* 

If  waiver  of  the  exemption  right  is  relied  upon  by  the  cred- 
itor, he  must  aver  it ;  and  if  he  has  sued  out  a  writ  of  attach- 
ment, the  officer  in  charge  of  it  must  indorse  the  fact  of  the 
waiver  on  it,  after  having  satisfied  himself  of  its  truth,  it  was 
held.5 

A  promissory  note  contained  the  following  waiver:  "I 
hereby,  for  myself  and  family,  expressly  waive  all  homestead 
rights  and  exemptions  which,  by  the  laws,  state  and  federal, 
are  allowed  to  me  and  my  family  in  any  of  said  described 
property,  and  all  other  property,  real  or  personal,  which  I 
now"  own,  or  may  hereafter  own  or  acquire,  until  this  debt  is 
fully  paid."  This  was  held  operative  against  all  the  personal 
property  of  the  maker.     The  note  was  executed  in  a  different 

absent  wife  made  such  request  to  a  Duncan,   79  Ala.    112;    Simpson    v. 

creditor  of  her  husband,  and  was  held  Simpson,  30  Ala.  225. 

estopped  from  subsequently  claiming  ■*  But,   in    Alabama,   it  would    be 

exemption    right,    as    her    act    was  deemed  an  abandonment,  were  it  not 

treated  as  an  abandonment  of  the  for  section  2843  of  the  code.    Beckert 

homestead  on  her  part.  v.  Whitlock,  83  Ala.   123 ;  Scaife  v. 

'Warner  v.   Crosby,   89  111.   320;  Argall,  74  Ala.  473. 

Smith  V.  Miller,  31  111.  157;  Boyd  v.  &  Held  under  Alabama  Code  of  1876. 

Cudderback,  31  111.  113 ;  Best  v.  Ghol-  §§  2849,  2850 :  Fears  v.  Thompson,  82 

son,  89   111.  465 ;  Trustees  v.  Hovey,  Ala.  296.     See  McCrummen  v.  Camp- 

94  111.  394.  bell,  82  Ala.  566.    In  Alabama,  waiver 

-  Knopf  V.  Hansen,  37  Minn.  215.  must  be  by  a  separate  instrument. 

3  Stanley   v.  Ehrman,  83  Ala,  215 ;  When  expressed  in  a  note,  it  was  held 

Sherry  v.  Brown,  66  Ala.  51 ;  Ran-  insufficient,  though  the  note  was  wit- 

dolph  V.  Little,  62  Ala.  396;  Hines  v.  nessed.     Baker  v.  Keith,  72  Ala.  121. 


PLEADING    WAIVEB.  557 

state  from  that  in  which  the  note  was  sued  upon,  but  the  court 
said:  "AVe  are  inclined  to  the  view  that  the  waiver  would  be 
good  against  any  claim  of  exemption  to  personalty  in  any- 
state  of  the  Union  where  the  debtor  might  reside  and  be  sued."  ' 

Such  waiver  in  a  promissory  note  must  be  pleaded  if  the 
plaintiff  would  avail  himself  of  it.  Upon  appeal,  it  will  not 
be  regarded  if  it  is  not  noticed  in  the  judgment  of  the  court 
below.^  "The  purpose  of  the  statute  requiring  a  waivei*  of 
exemptions  to  be  averred  in  the  complaint  is  that  the  defend- 
ant may  join  issue  thereon  and  controvert  the  fact.  If  his 
plea  is  limited  to  the  mere  denial  of  such  averment,  and  his 
contestation  is  sustained,  the  only  consequence  is  that  the 
judgment  will  not  contain  a  recital  of  the  fact  of  waiver;  but 
the  plaintiff  may,  nevertheless,  have  judgment  for  the  debt 
and  costs."' 

A  bond  which  does  not  waive  homestead  exemption  may  be 
insufficient  to  protect  its  holder,  yet  not  be  void  so  that  the 
giving  of  it  was  non-compliance  with  the  law  requiring  bond 
to  be  given.  Since  he  could  have  moved  to  have  it  made  suffi- 
cient, the  court,  in  a  case  where  the  validity  of  such  a  bond 
was  questioned,  held  it  not  void  but  a  binding  obligation.^ 

A  mortgagor  may  claim  his  homestead  right  when  he  has 
not  released  it,  though  he  has  not  put  it  at  issue  in  the  fore- 
closure proceedings.  He  may  lie  still  till  the  purchaser  at  the 
mortgage  sale  brings  an  action  of  ejectment,  and  not  be  too 
late  to  claim  the  right>if  he  has  remained  in  occupancy.^ 

When  there  has  been  a  waiver  of  homestead  as  to  some  cred- 
itors and  not  as  to  others,  there  is  no  difficulty  in  mai'shaling 
the  liens  unless  there  are  unwaived  ones  senior  to  those  waived.® 

1  Holland  v.   Bergeo,  89  Ala,  622 ;  » Asher  v.  Mitchell,  93  111.  480.    See 

Alabama  Code  (1886),  §  2570;  Wag-  Goltra  v.  Green,  98  III.  317.  Mortgage 

non  V.  Keenan,  77  Ala.  519 ;  Terrell  to  secure  borrowed  school  fund  not 

V.  Hurst,  76  Ala.  588.  good  against  homestead  without  re- 

■'  Courie  v.  Goodwin,  89  Ala.  569.  lease.     Board  of  Trustees  v.  Beale,  98  ' 

3  Golden  v.   Conner,  89   Ala,  598;  111.248. 

Goetter  v.  Pickett,  61  Ala.  387.  ^See  Scott  v,  Cheatham,  78  Va.  82 ; 

*  Acker  v.  Alex.  etc.  R  Co.,  84  Va  Strange  v.  Strange,  76  Va.  240. 
€4a 


CHAPTER  XVIII. 


ABANDONMENT. 


§  1.  Permanent  Removal. 

2.  Temporary  Removal. 

3.  Removal  to  a  New  Home. 

4.  Leasing  tlie  Premises. 

5.  Cessation  of  Ownership. 


§  6.  Family    Headship    Relative    to 
Abandonment. 

7.  Effect  on  the  Wife's  Rights. 

8.  Effect  on  the  Widow's  Rights. 


§  1.  Permanent  Removal. 

The  conditions  u)3on  which  the  exemption  right  is  acquired 
are  not  all  stringently  necessary  to  its  retention.  Continued 
occupancy,  however,  is  generally  required.  The  voluntary 
leaving  of  the  home  with  no  intention  of  returning  to  it  is  an 
abandonment  of  the  right,  though  the  legal  possession  of  the 
property  be  retained.  Aliud  est  ijossidei'e^  aliud  esse  in  pos- 
.sessione.  While  the  owner  ma^^  legally  possess,  and  even  be 
in  possession  in  a  legal  sense,  he  may  not  be  in  the  actual  oc- 
cupancy of  his  property  as  the  home  of  his  family  in  the  sense 
of  the  homestead  statute.  To  retain  the  exemption  right,  the 
beneficiary  must  live  upon  the  property  as  the  home  of  him- 
self and  his  family ;  and  the  property  must  not  share  the  home 
character  with  any  other  place  of  residence.  It  is  well  set- 
tled that  permanent  removal  from  the  homestead  is  an  aban- 
donment of  the  exemption  right  and  privilege.^ 

If  the  homestead  consists  merely  of  a  farm,  would  it  be 
abandoned  by  moving  the  family  from  a  dwelling  situated  on 

1  Bradford  v.  Central  Loan  Co.,  47 
Kaa.  587  ;  28  P.  702 ;  Osborne  v.  Scoon- 
maker  (Kas.),   28  P.    710;    Duffy  v. 
Willis,  99  Mo.  133 ;  Smith  v.  Bunn, 
75  Mo.  559;    Kaes  v.  Gross,  92  Mo. 
648;    Leake  v.   King,   85    Mo.   413; 
Jackson  v.  De  Bose,  87  Ga.  761 ;  18 
S.  E.  916;  Bank  v.  Smisson,  73  Ga. 
422;  Bell  v.   Schwarz,   37  Tex.  572 
McMillan   v.  Warner,   38   Tex.   410 
Gouhenant  v.  Cockrell,  20  Tex.  97 
Shepherd   v.    Cassiday,  20  Tex.   29 


Phillips  V.  Springfield,  39  111.  83 ;  Will- 
iams v.  Moody,  35  Minn.  280 ;  Rob- 
ertson V.  Sullivan,  31  Minn.  197; 
Campbell  v.  Adair,  45  Miss.  170; 
Austin  V.  Stanley,  46  N.  H.  51 ;  New- 
man V.  Franklin,  69  la.  244 ;  Gardner 
V.  Baker,  25  la.  343;  Kimball  v.  Wil- 
son. 59  la.  638 ;  Cotton  v.  Hamil,  58 
la.  594 ;  Ross  v.  Hellyer,  26  Fed.  R. 
413 ;  Van  Bogart  v.  Van  Bogart,  46 
la.  359 ;  Leonard  v.  Ingraham,  58  la. 
406 ;  Baker  v.  Jamison,  73  la.  698. 


PERMANENT    KEMOVAL.  '>^>'f 

it  to  one  near  by?  In  answer,  it  has  been  held  that  by  mov- 
ing from  his  own  house  to  one  on  an  adjoining  lot  not  his,  the 
householder  does  not  abandon  his  homestead  in  his  own  land 
which  he  still  occupies  as  a  part  of  his  home  place.'  In  such 
case  there  is  no  design,  on  the  part  of  the  beneliciary,  to  ex- 
pose his  farm  to  creditors,  lie  leaves  his  accustomed  roof 
for  another,  but  still  cultivates  his  ground  as  before;  still  act- 
ually occupies  the  principal  j  art  of  his  homestead. 

Subsequent  removal  from  the  homestead  by  both  husband 
and  wife,  with  their  family,  so  as  to  amount  to  abandonment, 
will  not  cure  the  effect  of  a  deed  of  trust  given  by  the  husband 
alone,  conveying  the  property.-  It  will  not  retroact  so  as  to 
give  validity  to  the  prior  transfer  of  the  property  by  either  of 
them.*  Though  they  make  a  declaration  of  abandonment  for 
the  purpose  of  validating  a  mortgage  made  by  him  alone,  it 
will  not  have  that  effect.* 

An  abandoned  home  is  open  to  creditors;  but,  if  they  do 
not  proceed  against  it,  the  owner  may  return  to  it  and  re- 
dedicate  it  as  a  homestead  so  that  it  Avill  be  free  from  his 
future  personal  obligations  as  a  debtor.'^ 

When  there  is  a  question  between  the  grantee  of  a  former 
homestead  and  creditors  of  the  grantor,  evidence  of  declara- 
tions made  in  disparagement  of  the  homestead  interest  by  the 
grantor  when  in  possession,  before  the  grant,  is  admissible.^ 
And  the  grantee  may  show  that  the  grantor's  wife  had  aban- 
doned before  sale.^  It  has  been  held  that  a  wife  may  lose  her 
right  by  quitting  the  homestead  premises  permanently  and 
voluntarily.^ 

Abandonment  must  be  voluntary."  It  may  be  accomplished 
either  with  or  without  the  acquisition  of  anew  home  to  which 
the  immunities,  privileges  and  restraints  of  the  discarded  one 
are  transferred.'"   Where  homestead  is  held  to  be  a  mere  right 

1  Nichols  V.  Nichols,  62  N.  H.  621 ;  &  Anderson  v.  Kent,  14  Kas.  207. 

Cole  V.  Bank,  59  N.  H.  53, 321 ;  Locke  ■  Tb. 

V.  Rowel),  47  N.  H.  46;  Buxton  v.  SLevison  v.  Abrahams,  9  Lea,  178; 

Dearborn,  46  N.  H.  43.  Roach  v.  Hacker,  2  Lea,  634 ;  Jarnian 

2Cummings  v.  Busby,  62  Wis.  195.  v.  Jarman,  4  Lea,  675;  Act  of  1874: 

3  Belden  v.  Younger,  76  la.  567,  570 ;  Tenn.  Code,  §  21 14a. 

Alexander  v.  Vennum,  61  la.  160.  "  Reece  v.   Renf  ro,   68  Tex.     192 ; 

*Gleason  v.  Spray,  81  Cal.  217.  Moss  v.  Warner,  10  Cal.  296. 

s  Carter  V.  Goodman,  11  Bush,  228.  m  Smith   v.    Uzzell,    56    Tex.    315; 


560  ABANDONMENT. 

of  occupancy,'  the  surrender  of  that  right  exposes  the  home 
property  to  creditors. 

Under  the  provision  that  no  release  or  waiver  of  homestead 
exemption  "  shall  be  valid  in  law,  unless  by  cVeed  acknowl- 
edged and  recorded  as  In  case  of  conveyance  of  real  estate," 
it  was  held  that  the  exemption  right  was  not  lost  by  the  re- 
moval of  the  family  from  the  premises.^  Under  several  stat- 
utes, abandonment  may  be  by  a  recorded  declaration.* 

Removal  from  the  state. —  Where  the  homestead  beneficiary 
changes  his  residence  by  removing  permanently  to  another 
state,  he  abandons  his  homestead  protection.  Whether  he  ac- 
quires a  new  homestead  in  the  state  of  his  adoption  or  not, 
the  effect  is  the  same.* 

It  has  been  held  (in  exposition  of  a  constitutional  provision 
that  the  homestead-holder  must  be  "'a  resident  of  the  state") 
that  he  must  be  an  actual  —  not  a  mere  constructive  —  resi- 
dent; so  definite  absence  will  deprive  him  of  the  benefit  of 
homestead  exemption,  though  he  have  the  intention  of  return- 
ing to  the  state.^  Leaving,  without  such  intention,  is  more 
plainly  still,  a  forfeiture  of  his  right.^  Upon  removal  to  an- 
other state  only  for  a  brief  period,  he  may  be  considered  to 
have  abandoned  his  right  of  exemption,  when  the  fact  is 
found  that  he  has  changed  his  residence  so  as  to  be  no  longer 
ai  d  '^g  in   the   state.^     A  judgment   creditor   may    proceed 

Woolfolk  V.  Ricketts,  48  Tex.  28;  Jor-  «  Finley  v.  Saunders,  98  N.  C.  462. 

clan  V.  Godman,  19  Tex.  273.  ^  A  debtor  left  Alabama  for  Geor- 

1  Flatt  V.  Stadler,  16  Lea,  371  (Act  gia,  where  he  engaged  in  business, 
of  1879);  Howell  V.  Jones  (Tenn.),  19  An  execution  had  been  levied.  His 
S.  W.  757.  return  was  held  not  to  dislodge  tlie 

2  Connor  V.  McMurray,  2  Allen,  204,  lien  created  by  the  judgment  and 
in  exposition  of  Mass.  Stat.  1857,  eh.  levy.  McCrary  v.  Chase,  71  Ala.  540. 
298 ;  Doyle  v.  Coburn,  6  Allen,  71.  But  a  widow  was  held  entitled  to 
{Compare  Lazell  v.  Lazell,  8  Allen,  homestead  when  her  husband  died 
575. )  with  only  an  equitable  title  —  a  con- 

3  For  instances :  Rev.  Stat,  of  Idaho,  tract  to  purchase ;  and  when  she 
§  3041 ;  Rev.  Stat,  of  Arizona,  §  2075 ;  had  ceased  to  be  a  resident  of  Ala- 
Tipton  V.  Martin,  71  Cal.  325 ;  Porter  bama,  the  creditors  could  not  levy 
V.  Chapman,  65  Cal.  365.  upon  the  property.    Munchus  v.  Har- 

4  Lindsay  v.  Murphy,  76  Va.  428 ;  ris,  69  Ala.  506.  But  it  has  been  held 
Fessler  v.  Haas,  19  Kas.  216.  that    a    wife's  removal  to    another 

5  Lee  V.  Moseley,   101  N..  C.   311 ;  state  forfeited  her  homestead  right. 
Const,  of  N.  C,  art.  10,  §  2 :  Baker  v.  Perry  v.  Scott,  68  Tex.  208. 
Legget  98  N.  C,  304 ;  Munds  v.  Cas- 

sidey,  98  N.  C.  558. 


PERMANENT    REMOVAL.  561 

against  the  homestead  to  make  his  money.'  There  are  decis- 
ions, however,  winch  sound  to  the  contrary  of  the  judicial 
opinion  just  stated.  "  Even  a  removal  from  the  homestead, 
followed  by  long-continued  residence  and  the  acquirement  of 
citizenship  in  another  state,  has  been  held  not  to  operate  as 
an  abandonment." '* 

A  widower  left  his  only  child,  a  minor,  at  his  homestead  in 
care  of  near  relatives  who  came  to  live  there  while  he  went 
away  to  better  his  fortune.  He  went  without  design  of  aban- 
doning his  home,  though  he  exercised  the  rights  of  a  citizen 
and  voted  while  away  in  another  state.  It  was  decided,  upon 
these  facts,  that  there  had  been  no  abandonment,  and  that  his 
right,  as  tenant  b}'^  curtesy,  in  the  homestead  which  had  be- 
longed to  his  wife,  was  not  subject  to  execution  sale  by  his 
creditors.'' 

It  is  settled  as  a  rule  of  law  that  domicile  continues  till  it  is 
left  without  design  of  returning  to  it.  It  continues  until  it  is 
succeeded  by  another.'*  And  the  homestead  right  has  been 
so  far  coupled  with  domicile  that  it  has  been  held  that  one 
may  go  to  another  state  —  ma}'^  abscond  for  fear  of  arrest  — 
and  his  wife  may  follow  him ;  and  they  may  not  return  till  he 
be  brought  back  by  an  officer  under  arrest:  yet  the  domicile 
and  the  homestead  rig'ht  will  remain  unchanged.* 

Removal  to  another  state  and  purchase  of  a  homestead 
there  with  the  proceeds  of  the  homestead  owned  in  the  state 
of  the  emigrant's  former  residence,  and  the  subsequent  sale  of 
his  foreign  homestead  and  the  investment  of  its  proceeds  in 
another  residence  on  return  to  his  first  state,  will  not  pi*event 
execution  for  debts  contracted  before  the  establishment  of  the 
last  homestead."  Permanent  removal  from  the  state  is  aban- 
donment, whether  a  new  homestead  be  established  in  the 
place  to  which  the  emigrant  goes  or  not.' 

J  City  Bank  V.  Sraisson,  73  Ga.  422 ;  Neb.    675;    McHugh    v.   Smiley,  17 

Skinner  v.  Moye,  69  Ga.  476.  Neb.  620-6. 

2  Lubbock  V.  McMann,  82  Cal.  226,  •»  State  v.  Finn.  4  Mo.  App.  347 ; 
229  (referring  to  Porter  V.  Cliapman,  Greene    v.   Beck  with,    38    Mo.   384* 
65  Cal.  367;  and  Tipton  v.  Martin,  71  Adams  v.  Abernathy,  37  Mo.  19a 
Cal.  325).    See  Graves  v.  Campbell,  74  5  Griffitli  v.  Bailey,  79  Mo.  472. 
Tex.  576.  6  Caldwell  v.  Seivers,  85  Ky.  38. 

3  Dennis    v.   Omaha  N.   Bank,   19  ^  Jackson  v.  Du  Bose,  87  Ga.  761. 

36 


562 


ABANDONMENT. 


§  2.  Temporary  Removal. 

The  occupancy  required  is  not  slavish;  it  admits  of  ab- 
sences from  time  to  time  by  the  head  of  the  family  and  all 
of  its  members;  it  is  in  compliance  with  the  law  if  there  is 
an  intention  to  return  on  the  part  of  the  beneficiary,  and  if 
there  has  been  no  establishment  of  a  home  elsewhere.  There 
are  many  instances  of  doubt  as  to  the  character  of  the  re- 
moval, involving-  the  question  of  intention;  but,  when  it  is 
made  clear  that  the  absence  is  temporary,  and  the  design  of 
the  homestead  owner  is  to  resume  the  actual  occupancy  with 
his  family,  there  is  no  abandonment  of  the  exemption  right.' 

Intent  to  return,  when  a  husband  and  wife  are  away  from 
their  homestead,  does  not  mean  that  both  mean  to  return 
but  that  the  husband  does.  The  design  of  the  head  of  the 
family  bears  on  the  question  whether  there  has  been  aban- 


>  Cooper  V,  Basliam  (Tex.),  19  S.  W. 
704;  Feldes  V.  Duncan,  30  III.  App. 
4G9,  475 ;  Potts  v.  Davenport,  79  111. 
455 ;  Wilkins  v.  Marshall,  80  111.  74 ; 
Kenley  v.  Hudelson,  99  111.  493; 
Cobb  V.  Smith,  88  111.  199 ;  Heuson 
V.  Moore,  104  111.  403;  Shepard  v. 
Brewer,  65  111.  383;  Brennan  v. 
Wallace,  25  Cal.  108;  Dulanty  v. 
Pyuchon,  6  Allen,  510 ;  Carrington 
V.  Herrin,  4  Bnsh,  634 ;  Hansford  v. 
Holdain,  14  Bush,  210 ;  Tumlinsou  v. 
Swinnej',  22  Ark.  400;  Upman  v. 
Bank,  15  Wis.  449 ;  Burch  v.  SherilT, 
37  La.  Ann.  725 :  Davis  v.  Kelley,  14 
la.  523;  FyflFe  v.  Beers,  18  la.  4; 
Morris  v.  Sargent,  18  la.  90 ;  Graves 
V.  Campbell,  74  Tex.  576 ;  McDannell 
V.  Ragsdale,  71  Tex.  23;  Cline  v. 
Upton,  59  Tex.  28;  McMillan  v. 
Warner,  38  Tex.  411;  Kaufman  v. 
Fore,  73  Tex.  308 ;  Parr  v.  Nevvby,  73 
Tex.  468 ;  Welborne  v.  Downing,  73 
Tex.  527 ;  Weaver  v.  Nugent,  72  Tex. 
272;  Sanders  v.  Sheran,  66  Tex.  655; 
Shepherd  v.  Cassiday,  20  Tex.  30; 
Austin  V.  Townes,  10  Tex.  24 ;  Thomas 
V.  Williams,  50  Tex.  269 ;  Pierson  v. 
Truax,  15  Colo.  223;  25  Pac.  183; 
Colo.  Gen.  Stat.  ch.  51.  §  3 :  Griffin 


v.  Sutherland,  14  Barb.  458 ;  Wood- 
ward V.  Murray,  18  Johns.  400; 
Orman  v.  Orman,  26  la.  361 ;  Boot 
V.  Brewster,  75  la.  631 ;  Robb  v.  Mc- 
Bride,  28  la.  386  (the  house  rented 
during  the  owner's  absence);  Shir- 
land  V.  Union  Bank,  65  la.  96  (farm 
rented,  except  a  room  stored  with 
furniture);  Bradshaw  v.  Hurst,  57 
la.  745  (both  husband  and  wife  tem- 
porarily absent) ;  Griffin  v.  Sheley, 
55  la.  513,  and  Savings  Bank  v. 
Kennedy,  58  la.  454  (husband  absent, 
with  intent  to  return) ;  Lunt  v.  Neely, 
67  la.  97  (husband  absent  with  in- 
tent to  abandon  while  the  wife  re- 
mained with  intent  to  occupy); 
Woolcut  V.  Lerdell,  78  la.  668  (leav- 
ing home  to  avoid  disagreeable  re- 
lations with  another  occupant); 
Jones  V.  Blumenstein,  77  la.  361 ; 
Gates  V.  Steele,  48  Ark.  539 ;  Euper 
V.  Alkire,  37  Ark.  283;  Brown  v. 
Watson,  41  Ark.  309 ;  Curran  v.  Gulp 
(Ky.),  15  S.  W.  657;  McFarlajid 
V.  Washington  (Ky.),  14  S.  W.  354 ; 
Beckman  v.  Meyer,  75  Mo.  333; 
Smith  V.  Bunn,  73  Mo.  559 ;  Kaes  v. 
Gross,  92  Mo.  647 ;  Eckman  v.  Scott 
(Neb.).  52  N.  W.  822. 


TEMPOKARV     RKMOVAL.  50^ 

donment  or  not.  However  influcntinl  may  be  the  wife's  will, 
the  law  must  look  to  that  of  him  who  is  held  responsible  as 
the  head  of  the  community,  and  must  take  his  intent  as  the 
proper  index  of  the  conjugal  design.  Rather,  it  should  be 
said,  the  law  takes  his  intent  as  conclusive.' 

The  period  of  absence  is  to  be  considered  in  deteriniuitig 
the  intention  of  the  absentee,  whether  he  meant  to  return  or 
to  abandon  his  habitation.^  Though  the  absence  may  extend 
through  several  months  or  years,  with  only  partial  occupancy, 
the  intention  to  return  may  have  continued  all  the  while  to 
the  preservation  of  the  exemption  right. ^  It  may  be  per- 
fectly consistent  with  the  legal  occupancy  required,  and  may 
not  work  the  forfeiture  of  the  homestead.  The  intention  may 
be  inferred  from  circumstances,  such  as  the  leaving  of  furni- 
ture within  the  dwelling,  which  would  be  corroborative  of 
the  beneliciary's  testimony,  or  of  other  testimony,  as  to  the 
intent.  Though  the  beneficiary  may  have  removed  into  an- 
other dwelling  rented  for  the  period  in  which  his  own  exempt 
home  is  undergoing  repairs,  or  though  he  may  have  vacated 
his  homestead  temporarily  for  the  purpose  of  traveling  with 
his  family,  or  for  any  other  purpose,  the  exemption  remains 
unaffected.* 

The  time  of  absence,  with  intent  to  return  to  the  home,  is 
no  criterion  as  to  whether  the  exemption  right  has  been  for- 
feited. It  may  tend  to  satisfy  the  court  whether  or  not  the 
beneficiary  has  kept  within  the  letter  and  spirit  of  his  granted 
])rivilege;  but,  when  no  inhibition  of  absence  has  been  ex- 
pressed by  the  legislator  and  no  time  fixed  as  the  limit  of 
temporary  non-occupancy  while  intention  to  return  exists,  the 
courts  can  lay  down  no  precise  rule  as  to  the  time  which  shall 
be  applicable  to  all  cases.^ 

1  Williams  v.  Moody,  35  Minn.  280 :  *  Bunker  v.  Paquette,  37  Mich.  79 ; 
Phillips  V.  City  of  Springfield,  39  111.  Earll  v.  Earll.  60  Mich.  30;  Campbell 
83 ;  Johnston  v.  Turner,  29  111.  280 ;  v.  Adair,  45  Miss.  170 ;  Wiggins  v. 
Brennan  v.  Wallace,  25  Cal.  108.  Chance,  54  111.   175;  Howard  v.  Lo- 

2  Dunton  v.  Woodbury,  24  la.  74 ;  gan,  81  111.  383 ;  Tomlinson  v.  Swin- 
Curran  v.  Gulp  (Ky.),  15  S.  W.  657.  ney,  22  Ark.  400 ;  Moss  v.  Warner. 

» Repenn  v.  Davis,  73  la.  548 ;  Jones  10    Cal.   296 ;    Jackson    v.   Reid,   32 

V.  Blumenstoin,  77   la.   361 ;  Mills  v.  Ohio  St  443. 

Van  Boskirk,  32  Tex.  361 ;  Taylor  v.  '=  Bunker  v.  Paquette,  37  Mich.  79; 

Boulware,    17   Tex.    74;  Wiggins   v.  GrifHn  v.  Sutherland,  14  Barb.  (N.  Y.) 

Chance,  54  IlL  175.  456. 


5f)4  ABANDONMENT. 

The  premises  may  be  vacant,  even  at  the  time  of  the  levy 
upon  them  for  execution,  and  the  owners  may  be  living  at  an- 
other place  at  the  time.  Upon  proof  that  the  home  vv^as  not 
meant  to  be  permanently  abandoned,  that  the  owner's  tempo- 
rary absence  was  caused  by  necessity,  and  that  they  left  part 
of  their  property  in  the  house,  their  claim  of  homestead  was 
allowed.^ 

''  What  state  of  facts  shall  be  deemed  to  constitute  a  chaufje 
of  domicile  may  be  considered  a  mixed  question  of  law  and 
fact,  and  is  one  proverbially  difficult  to  determine,  ow4ng  to 
the  doubtful  interpretations  of  human  conduct.  It  is  univers- 
ally admitted  that  such  a  change  is  never  effected  by  inten- 
tion alone.  It  can  be  accomplished  only  by  a  completed  act, 
done  with  the  purpose  of  consummating  a  permanent  removal 
from  the  original  domicile,  animo  manendi.  The  old  domi- 
cile continues  until  a  new  one  is  acquiredy«c;fc)  et  animo?  A 
change  of  domicile  cannot  be  inferred  from  an  absence  which 
is  shown  to  be  temporar}'',  and  attended  with  the  requisite 
animus  revertendi."  The  intention  to  return  is  usually  the 
controlling  element  in  the  determination  of  the  whole  ques- 
tion." "^  But  if  there  has  been  no  declaration  of  homestead 
duly  filed  where  the  law  requires  it,  even  a  temporary  absence 
may  prove  fatal .^ 

The  burden  of  proof  is  on  the  beneficiary  w^ho,  after  pro- 
tracted absence,  or  any  temporary  removal  from  home,  with 
Ids  family,  attended  with  circumstances  ordinarily  showing- 
abandonment,  alleges  that  he  had  meant  to  retain  his  exemp- 
tion right  and  to  resume  his  residence.  The  presumption  is 
against  him  under  such  circumstances.^ 

The  declaration  of  a  beneficiary  that  he  intends  to  return, 
made  at  a  time  not  suspicious,  may  be  given  in  evidence. 
Declarations  to  the  contrary  are  admissible  against  him.'   And 

1  Karn  v.  Hanson,  59  Mich.  380.  Bryan,  67  Ala.  558,  cited  by  him  on 

'•^  State  V.  Hallett,  8  Ala.  159 ;  Glover  the  last  point. 

V.  Glover,  18  Ala.  367 ;  Story's  Con-  &  Sides  v.  Schaiff  (Ala.),  9  So.  228. 

flictof  Laws,  §47;  Talmadge  V.  Tal-  6  Benson   v.   Aitkcn,    17  Cal.   164; 

mads?e,  66  Ala.  199.  Harper  v.  Forbes,  15  Cal.  202;  Cook 

^McConnaughy  v,  Baxter,  55  Ala.  v.  McChristian,  4  Cal.  25;  Taylor  v. 

379 ;  Kelly  v.  Garrett,  67  Ala.  304.  Hargous,  4  Cal.  272 ;  Ives  v.  Mills,  37 

4  Somerville,  J.,  deciding  Murphy  111.  75 ;  Kitchell  v.  Burgwin,  21  111. 

V.   Hunt,  75   Ala.   438.     Lehman   v.  40 ;  Jarvais  v.  Moe,  38  Wis.  448. 

T  Anderson  v  Kent,  14  Kan.  207; 


TEMPORARY    REMOVAL.  r)C5 

it  has  been  held  that  his  wife's  rights  vvoukl  be  concluded  by 
his  declarations.' 

Intention  to  return  after  removal,  when  supported  only  on 
the  evidence  of  the  beneficiary  himself,  ought  not  to  have 
greater  weight  than  that  of  circumstances  showing  a  contrary 
design.  "  I  greatly  prefer  the  evidence  of  facts  to  the  testi- 
mony of  parties  to  the  record  as  to  their  own  intentions,  when 
such  testimony  is  given  to  put  money  in  their  own  pockets," 
Judge  Love  said,  when  a  witness  who  had  abandoned  his 
homestead,  removed  to  another  county  and  voted  there,  swore 
in  his  own  case  that  his  intention  was  to  preserve,  and  return 
to,  his  homestead.^ 

A  house  and  lot  that  had  been  left  by  the  owner  and  his 
wife,  and  had  been  sold  under  execution  to  pay  his  debts 
with  his  assent,  was  claimed  by  him  as  his  homestead  three 
years  after  the  sale;  and  was  sued  for,  as  such,  five  years 
after.  Though  he  had  left  some  furniture  in  the  dwelling,  he 
had  established  another  home  elsewhere  for  himself  and  fam- 
ily. It  was  a  clear  case  of  abandonment,  though  he  swore,  on 
the  trial,  that  it  had  not  been  his  intention  to  abandon.^ 

Where  temporary  absence  is  so  regulated  by  statute  as  to 
permit  absence  for  half  a  year,  without  forfeiture,  upon  the 
homestead  holder's  recording  a  notice  of  intention  to  return, 
the  property  will  be  protected  for  that  time,  though  he  never 
return.*  The  notice,  however,  would  avail  nothing  if  there 
was  abandonment  from  the  day  of  departure,  and  that  fact 
established.^  And,  to  entitle  one  to  the  six  months'  absence 
upon  recorded  notice,  it  is  essential  that  he  shall  have  acquired 
the  homestead  right  by  actual  occupancy."  Leaving  with  in- 
tention to  return,  accompanied  with  preparation  to  do  so,  will 
be  of  no  avail  without  the  recorded  notice.' 

Batts  V.  Scott,  37  Tex.  65 ;  Holliman  5  Donaldson  v.  Lamprey,  29  Minn. 

V.  Smith,  39  Tex.  357 ;   McMillan  v.  18. 

Warner,  38  Tex.  411 ;  Wright  v.  Dun-  6  Baillif  v.  Gerliard,  40  Minn.  172  ; 

ning,  46  IlL  271 ;  Jarvais  v.  Moe,  38  Minn.  Gen.  Stat.  (1878),  eh.  68,  S  9. 

Wis.  448.  ^  In  tlie  case  of  Quelil  v.  Peterson 

1  Brennan  v.  Wallace,  25  Cal.  115.  (Minn.),  49  N.  W.  391,  the  court  said. 

2  Ross  V.  Hellyer,  26  Fed.  413,  U.  S.  with  reference  to  the  statute  reqnir- 
Circuit  Ct,  la..  Love,  J.  ing  notice :  "Thattliis  court  has  al- 

•>  Wilson  V.  Daniels,  79  la.  132.  ways  construed  the  statute  as  meau- 

*  Russell  V.  Speedy,  38  Minn.  303.        ing  that  the   homestead  exemption 


566 


ABANDONMENT. 


It  surely  was  never  contemplated  that  all  the  family  should 
be  always  at  home.  All  the  family  may  be  away  at  once, 
yet  there  would  not  be  necessarily  a  cessation  of  occupancy 
by  the  family.  Creditors  are  not  at  liberty  to  pounce  upon 
the  home  because  its  fires  are  out  and  its  inmates  gone.  If  a 
member  of  the  family  remains  in  charge,  creditors  would  be 
yet  less  excusable  for  levying  upon  the  premises.  But  the 
presence  of  a  subordinate  member  would  not  neutralize  the 
effect  of  the  absence  of  the  head  of  the  family  under  circum- 
stances indicating  abandonment.  A  husband  and  wife  both 
leaving  their  homestead,  it  was  open  to  creditors  though  his 
mother  had  remained  upon  it,  and  though  his  wife  declared 
her  intention  to  return  when  the  question  of  abandonment 
had  been  brought  into  litigation.^     Had  both  really  meant  to 


would  be  lost  by  removing  from  or 
ceasing  to  actually  occupylthe  prem- 
ises as  a  residence  for  more  than  six 
months  (unless  notice  was  filed),  even 
although  there  was  an  intention  to 
return,  is  evident  from  Russell  v. 
Speedy,  38  Minn.  303,  37  N.  W.  Rep. 
340,  and  Baillif  v.  Gerhard,  40  Minn. 
172,  41  N.  W.  Rep.  1059.  And  ex- 
actly in  the  same  line  we  have  held 
that  a  man  acquires  no  homestead 
exemption  by  purchasing  property 
with  the  intention  of  occupying  it  as 
a  homestead  until  and  unless  fol- 
lowed by  actual  occupancy  and  resi- 
dence thereon.  Kelly  v.  Dill,  23 
Minn.  435;  Liebetrau  v.  Goodsell,  26 
Minn.  417,  4  N.  W.  Rep.  813.  As 
showing  the  construction  which  has 
been  uniformly  placed  upon  the 
terms  used  in  the  homestead  exemp- 
tion statutes,  see,  also,  Folsom  v. 
Carli,  5  Minn.  333  (Gil.  264) ;  Tillot- 
son  V.  Millard,  7  Minn.  513  (Gil.  419) ; 
Kelly  V.  Baker,  10  Minn.  154  (Gil. 
134);  Kresin  v.  Mau,  15  Minn.  116 
(Gil.  87);  Stewart  v.  Rhoades,  39 
Minn.  193,  39  N.  W.  Rep.  141 ;  Neu- 
maier  v.  Vincent,  41  Minn.  481,  43 
N.  W.  Rep.  376.  Of  course,  the  stat- 
ute is  to  receive  a  reasonable  con- 


struction, and  we  are  not  to  be  un- 
derstood as  meaning  that  it  requires 
constant  personal  presence  so  as  to 
make  a  man's  residence  his  prison, 
or  that  an  enforced  temporary  leav- 
ing of  the  premises  from  accidental 
causes  such  as  fire  or  flood,  or  that  a 
temporary  absence  for  purposes  of 
business  or  pleasure,  not  amounting 
to  a  change  of  actual  residence, 
would  constitute  a  removal,  or  ceas- 
ing to  occupy,  within  the  meaning  of 
the  statute.  But  we  hold  that  upon 
the  facts  of  this  case  the  defendant 
had  removed  from  and  ceased  to 
occupy  the  premises  as  a  homestead, 
within  the  meaning  of  the  statute, 
for  more  than  six  months  prior  to 
March  15,  1890,  and,  not  having  filed 
the  notice  required  by  law,  his  right 
of  homestead  exemption  had  been 
lost,  and  that  it  was  not  regained  by 
his  mere  intention  and  preparation 
to  return.  Of  course,  the  title  which 
vested  in  the  plaintiff  under  the  as- 
signment could  not  be  divested  by 
the  subsequent  occupancy  of  the 
premises  by  the  defendant." 

1  Roach  V.  Hacker,  2  Lea,  633 ;  Act 
1870,  ch.  80,  §  1 ;  Code,  §  2114a  (T.  & 
S.).    Even  the  minor's  interest  may  be 


KKMOVAL    TO    A    NEW    nOMK.  567 

return  from  the  time  of  tlieir  removal,  the  fact  that  the  mother 
had  been  left  in  charge  would  have  rendered  it  certain  that 
no  right  had  been  forfeited;  for  it  is  held:  "The  homestead 
right  is  not  lost  by  a  temporary  removal  with  an  intention  to 
return  and  make  the  ])remises  a  home  again,  when  accom- 
panied with  an  actual  keeping  for  that  pur-pose."' 

If  the  husband  had  renuiined  at  home  and  all  the  rest  of  the 
family  had  gone  away  for  a  long  period  but  not  permanently, 
he  would  have  retained  the  homestead  right  with  its  restraint, 
and  his  wife  would  have  had  the  same  interest  as  thoug-h 
living  with  him  at  home.  A  wife  and  children  moved  to  a 
town  that  the  children  might  be  educated,  while  the  head  of 
the  family  still  occupied  their  rural  home.  lie  alone  mort- 
gaged his  homestead,  but  the  act  was  held  void.^  The  home- 
stead had  not  been  abandoned,  since  the  absence  of  the  family 
Avas  temporary.^  But  when  both  husband  and  wife  left  their 
homestead,  and  he  then  conveyed  it  by  deed,  these  facts  were 
evidence  of  abandonment.* 

Temporary  absence,  by  a  widow,  is  not  a  relinquishment  of 
her  right.^  She  is  not  everywhere  required  to  occupy  her 
homestead.  Where  occupancy  is  required,  her  permanent 
removal  would  be  abandonment,  as  in  the  case  of  other  ben- 
eficiaries." 

§  3.  ReniOYal  to  a  New  Home. 

]S"o  question  of  intent  to  return  can  be  entertained  when  a 
new  homestead  has  been  selected  and  occupied  by  the  owner 
and  his  family.  Whatever  he  may  profess  relative  to  his  old 
quarters  with  a  view  to  the  retention  of  the  exemption  privi- 
lege, it  must  go  for  naught  in  the  face  of  the  fact  that  he  has 
acquired  and  occupied  new  quarters  and  made  them  exempt. 

lost  by  his  removing  with  his  mother,  2Reinstein  v.  Daniels,  75  Tex.  640. 

a  widow,  from  the  homestead,  under  ^Ib.;  Mills  v.  Von  Boskirk,  32  Tex. 

the  act  of  1870.    Hicks  v.  Pepper.  1  331;  Cross   v.    Everts,  28  Tex.  524; 

Bax.  42.     See  Dickinson  V.  Mayer,  11  Gouhenant  v.  Cockrell,  20  Tex.  96; 

Heisk.  515.  Shepherd  v.  Cassiday,  20  Tex.  24. 

1  Keyes  v.  Bump,  59  Vt.  396  ;   Rice  ^  Portwood   v.    Newberry,  79  Tex. 

V.    Rudd,   57   Vt.   11;   Whiteman  v.  337. 

Field.  53  Vt.  557 ;  Vasey  v.  Trustees,  » Deering  v.   Beard   (Kau.),   28  P. 

59  111.  188;  Schaife  v.  Argall,  74  Ala.  981. 

473 ;  Lehman  v.  Bryan,  67  Ala.  558 ;  6  Craddock  v.  Edwards,  81  Tex.  609. 
Brettun  v.  Fox,  100  Mass.  234. 


568  ABANDONMENT. 

"  Actions  speak  louder  than  words."  The  occupied  dwelling 
is  the  exempt  one  to  the  exclusion  of  a  dwelling  previously 
occupied.  The  establishment  of  a  new  homestead  is  the 
abandonment  of  the  former  one.^  It  overcomes  all  consider- 
ations in  favor  of  the  exemptionist,  based  on  his  intention  to 
return  to  his  old  quarters;  for  his  ultimate  design  is  nothing 
when  he  has  established  a  new  home  exempt  under  the  law 
in  the  stead  of  the  old  one.  He  may  mean  to  sell  the  new 
one,  or  turn  it  over  to  his  creditors  within  a  year  or  two,  and 
then  move  back  to  the  old  mansion;  but  such  design  will  not 
preserve  the  latter  inviolate  meanwhile.  Suppose  he  should 
carry  out  such  design;  should  really  sell  the  new  residence: 
what  would  be  the  effect  as  to  the  old?  He  w^ould  have  no 
special  privilege  as  to  that.  At  his  death,  the  widow  would 
not  be  entitled  to  homestead  rights  in  it.^  It  would  be  pre- 
cisely like  other  real  estate  out  of  which  she  could  have  her 
widow's  homestead  laid  off,  under  the  law  of  several  states. 

If  a  citizen  is  elected  to  a  public  office  requiring  him  to  live 
at  the  county  seat,  or  at  the  state  capital,  he  certainly  may 
remove  his  family  thither,  without  incurring  the  loss  of  his 
special  privilege  in  his  homestead  temporarily  left;  but,  if  he 
vote  in  the  town  and  make  a  new  domicile-  there,  he  will  for- 
feit the  former  privilege.^  It  has  been  held,  however,  that  he 
would  not  lose  his  exemption  by  voting  where  he  holds  office, 
if  his  family  should  continue  to  live  at  the  old  home,  and  he 
intend  to  return  on  the  termination  of  his  official  service.^ 

One  who  mortgages  his  homestead  after  acquiring  a  new 
one  is  deemed  to  have  abandoned  his  exemption,'*  The  mo- 
tive of  the  beneficiary  is  often  the  turning  point  of  inquiry, 
and  the  fact  that  he  has  dedicated  a  new  home  is  conclusive. 

» Davis  V.  Kelly,   14  la.  523,  526 ;  Harris,  8  Tex.  312.     See  Rix  v.  Capi- 

Woodworth  v.  Comstock,  10  Allen,  tol  Bank,  2  Dill.  370. 
425  ;  Carr  v.  Rising,  62  111.  14  ;  Cahill        2  Mayors  v.   Mayors,  58  Miss.  806 ; 

V.    Wilson,   62   111.    137 ;    Wright   v.  Thompson  v.  Tillotson,  56  Miss.  36. 
Dunning,    46    111.    271;     Titman    v.         ^Atchison     Bank     v.     Wheeler's 

Moore,  43  111.  170  ;  Woolfolk  v.  Rick-  Adm'r,  20  Kas.  625 ;  Cabeen  v.  Mulli- 

ets,  41  Tex.  358 ;  Holliman  v.  Smith,  gan,  37  111.  230 ;  Titman  v,  Moore,  43 

39  Tex.  362;  Cross  v.  Everts,  28  Tex.  111.  170. 

533;  Allison  v.  Shilling,  27  Tex.  450;         ^Moline  Plow  Co.  v.  Vanderhoof, 

Brewer  v.  Wall.  23  Tex.  585  ;  Gouhe-  36  111.  App.  26  ;  Mclnturf  v.  WoodruflP, 

nant  v.  Cockrill,  20  Tex.  96;  Stewart  9  Lea,  671. 
v.   Mackey,  16  Tex.  56 ;  Trawick  v.        5  Carter  v.  Hawkins,  62  Tex,  393. 


REMOVAL    TO    A    NEW    HOME.  569 

But  preparation  to  move  into  a  new  liome,  witliout  actual 
cccupancy,  is  not  sufficient;^  for  the  statutory  requirement  of 
occupancy  has  been  hekl  subject  to  strict  construction.- 

Taking  measures  to  acquire  a  federal  homestead  is  held  not 
an  abandonment  of  the  state  homestead  ah'eady  occupied. 
But,  as  in  the  case  in  which  it  was  so  held,  the  owner  of  the 
latter  made  the  necessar}'^  affidavit  required  by  the  act  of  con- 
gress, at  the  time  of  entry;  erected  a  house  on  tlio  govern- 
ment land  selected;  moved  his  office  furniture  and  a  Ijcd  for 
himself  into  the  house;  slept  there,  and  doubtless  meant  to 
hold  out  to  the  government  that  he  made  his  home  there,  it 
cannot  be  said  truthfully  that  he  "occupied"  his  other  home- 
stead, at  the  same  time,  in  the  sense  in  which  the  law  requires 
it  to  be  "  occupied,"  by  a  beneficiary  of  the  homestead  law. 
His  wife  remained  on  the  state  homestead  already  acquired: 
he  on  the  federal  one  to  be  acquired.  He  had  two  strings  to 
his  bow.  It  is  said  that  both  he  and  his  wife  claimed  the 
former  as  their  homestead,  but  his  entry  and  subsequent  atti- 
tude was  that  of  a  man  holding  out  to  the  government  that 
he  was  living  on  public  land  to  acquire  it  as  his  home.  His 
domicile,  not  the  residence  of  his  wife,  is  that  of  her  and  the 
family. 

When  ready  to  sell  the  old  homestead  and  occu})y  the  new, 
they  made  the  change.  Was  not  the  prior  double-dealing 
meant  to  hold  the  former  exempt  from  creditors  till  they 
could  get  the  price  of  it  in  their  own  pockets;  and,  at  the 
same  time,  to  count  the  husband^s  occupancy  of  the  new 
quarters  on  the  period  of  probation  necessary  to  acquire  the 
congressional  homestead  ? 

The  court,  which  sanctioned  this  course  of  the  "•  settler  " 
and  state  homestead-holder,  said  that  "  the  fact  (if  it  be  one) 
that  the  federal  government  may  have  cause  of  complaint  on 
account  of  the  use  made  of  the  United  States  homestead  law  " 
does  not  affect  the  proposition  that  the  first  home  was  not 
abandoned  while  the  second  was  being  acquired.*  But  the 
"  settler  "  in  making  his  application  under  the  law  of  congress 
swore  that  he  took  the  quarter  section  for  the  purpose  of 

1  Sharp  V.  Johnston  (Tex.),  19  S.  W.  •'•Robertson  v.  Sullivan,  31  Minn. 
259.  197,  200. 

2  Tromans  v.  Mahlman,  92  Cal.  1. 


570  ABANDONMENT. 

actual  settlement  and  cultivation,  and  he  entered  upon  the 
occupancy,  real  or  feigned,  Avliich  he  meant  to  have  counted 
in  his  favor  as  compliance  with  tliat  law.  Are  his  affidavit 
and  conduct  consistent  with  the  claim  that  he  yet  continued 
to  be  an  actual  occupant  of  his  former  home  so  as  to  hold  it 
exempt  while  his  new  home  was  so?  llis  sworn  declaration 
was  evidence  of  his  election  to  take  the  new  home  in  lieu  of 
the  old.^  He  could  not  hold  both  homesteads  exempt.^  His 
declaration  by  affidavit  and  his  personal  and  permanent  act  of 
removal,  in  accordance  with  that  sworn  declaration,  ought  to 
have  been  treated  as  an  abandonment  of  his  state  homestead.' 
His  wife's  w^aiting  upon  the  latter  till  a  purchaser  could  be 
found  was  not  occupancy  by  the  owner  and  his  family,  such 
as  the  law  requires;  her  domicile  was  legally  on  the  quarter 
section  where  the  husband's  was.  For  the  wife's  home  is  that 
of  her  husband.^ 

As  the  husband's  domicile  is  the  w^ife's  domicile  too,  so  his 
homestead  and  hers  are  identical.  If  he  changes  his  old  home- 
stead for  a  new  one  and  moves  upon  the  latter,  his  wife  cannot 
remain  upon  and  occupy  the  former  so  as  to  allow  the  married 
couple  to  have  two  exempt  residences  at  the  same  time.  If 
his  transition  carries  the  homestead  right,  her  lingering  will 
avail  nothing.     His  home  becomes  hers  at  once.^ 

There  may  be  instances  when  the  purpose  of  leaving  the 
wife  behind,  Avhile  the  husband  goes  to  another  state  to  settle, 
is  merely  to  keep  off  creditors  —  not  to  preserve  a  home  for 
the  family.  In  such  case,  if  the  holding  is  only  colorable,  and 
really  a  fraud  upon  creditors,  the  property  ought  not  to  be 
protected  as  a  homestead.'' 

As  the  adoption  of  a  new  home  is  the  abandonment  of  the 

1  Lyman  v.  Fiska  17  Pick.  231.  5  Wynne   v.   Hudson,   66    Tex.    1 ; 

2  Opinion  of  Judges,  5  Met.  587.  Slavin  v.  Wheeler,  61  Tex.  658 ;  Shry- 

3  Donaldson  v.  Lamprey,  29  Minn,  ock  v.  Latimer,  57  Tex.  675 ;  Smith 
18 ;  Jarvais  v.  Moe,  38  Wis.  440.  v.   Uzzell.   56  Tex.   318 ;   Pepper    v. 

4  Brewer  v.  Linnaus,  36  Me.  428;  Smith,  54  Tex.  115;  Rauney  v.  Miller, 
Greene  V.  Greene,  11  Pick.  410;  Mc-  51  Tex.  269;  Clements  v.  Lacy,  51 
Afee  V.  Ky.  University,  7  Busli,  135;  Tex.  157;  Woolfolk  v.  Rickets,  48 
Hairston  v.  Hairston,  27  Miss.  704 ;  Tex.  37 ;  Holliman  v.  Smith,  39  Tex. 
Hair  v.  Hair,  10  Rich.  (S.  C.)  Eq.  163 ;  361 ;  Jordan  v.  Godman,  19  Tex.  273. 
Babbitt  v.  Babbitt.  69  IlL  277;  Angier  ^See  Baines  v.  Baker,  60  Tex.  140; 
V.  Angier,  7  Phila,  305.  Jones  v.  Trammell,  27  Tex.  133. 


LEASING    TlIK    PUEMISK.S.  571 

old,  an  heir  of  deceased  parents  who  have  united  in  making 
such  change  cannot  claim  any  homestead  right  in  the  first  as 
inherited  froin  them.' 

Joinder  by  husband  and  wife  in  mortfrafrinir  the  homestead 
(where  that  is  allowed)  results  in  aband(jnment  of  it  on  fore- 
closure. The  purchaser  at  the  sale  takes  the  proi)erty  free 
from  any  homestead  claim  by  the  mortgagors —  wife  and  hus- 
band. The  exemption  right  does  not  cease,  ijjso  facto,  upon 
the  making  of  the  mortgage,  except  in  relation  to  the  mort- 
gagee.    As  to  others,  it  remains  good  till  the  foreclosure.^ 

In  a  case  of  conflicting  testimony  as  to  which  of  two  places 
is  the  homestead  of  a  party,  involving  the  question  of  the 
abandonment  of  the  place  first  occupied,  the  yerdict  of  a  jury 
ought  not  to  be  disturbed.^ 

In  changing  homes,  selling  one  and  fitting  up  another  bought 
"with  the  proceeds  of  the  first,  the  family  head  is  allowed  rea- 
sonable time  for  the  transition.  If  his  intention  is  to  occupy 
his  new  home  as  soon  as  he  can  have  a  dwelling  erected  upon 
the  land,  and  if  he  is  building  with  ordinary  celerity,  and  if  he 
does  occupy  it  actually  and  permanently,  with  his  family,  as 
soon  as  it  is  completed,  he  will  be  considered  as  never  having 
abandoned  his  homestead  right  from  the  time  lie  acquired  his 
first  homestead.* 

When  the  home  buildings  had  been  destroyed  by  fire,  and 
it  was  shown  that  the  owner  meant  to  rebuild,  no  abandon- 
ment was  incurred  by  his  forced  absence  from  it  meanwhile.-^ 

Actual  occupancy  cannot  be  rendered  ineffectual  to  support 
the  exemption  right  by  evidence  tending  to  show  that  the  oc- 
cupants had  designated  othef  land  as  their  homestead.  Such 
evidence  is  not  even  admissible  against  the  fact  of  long  occu- 
pancy duly  established.^ 

§  4.  Leasing  the  Premises. 

Whether  the  homestead  may  be  leased  for  a  limited  time 
consistently  with  the  rule  of  continued  occupancy  depends 

1  Wheeler  v.  Smith,  62  Mich,  373.        Neal  v.  Coe,  35  la.  410;  Edwards  v. 

2  Chamberlain  v.  Lyell.  3  Mich.  448.     Fry,  9  Kan.  417, 

8  Kr.tch  V.  Holly,  77  Tex,  220 ;  14  5  Howard  v.  Logan,  81  111.  383. 

S.  W.  "32.  « Pellat  v.  Decker,  72  Tex.  578  :  Rad- 

*Boyd  V.    Fullertou,    135   111.  437;  ford  v.  Lyon,  05  Tex.  471 ;  Stringer  v. 

Crawford  v.  Richeson,  101  111.  3--)l ;  Sweuson,  63  Tex.  7 ;  Jacobs  v,  Haw- 

Cowgell  V,  Warrington,  66  la  666 ;  kins,  63  Tex.  1. 


572  ABANDONMENT. 

upon  the  circumstances  attending  the  transaction  and  the 
animus  of  the  beneficiary  respecting  the  retention  or  renun- 
ciation of  his  family  residence.  Ordinarily,  the  leasing  of  his 
place  to  become  the  home  of  another  family  is  a  renunciation 
of  it  as  that  of  his  own.  The  governing  statutory  imposition 
of  the  condition  of  occupancy,  as  means  of  preserving  the  ex- 
emption privilege,  may  not  be  inconsistent  with  temporary 
leasing.  Temporary  absence,  with  intent  to  return,  is  not 
abandonment,  though  part  of  the  homestead  premises  be  leased 
to  a  tenant  during  the  absence  of  the  householder.^  Indeed, 
the  leasing  of  the  whole  premises  for  a  limited  time  is  not 
conclusive  against  the  beneficiary  as  to  the  fact  of  abandon- 
ment ;  2  but  the  question  would  turn  on  the  owner's  design  to 
resume  his  home.^ 

It  would  seem  that  when  a  beneficiary  leases  his  homestead 
for  the  period  of  his  natural  life,  he  could  not  more  effectually 
abandon  it;  yet  it  is  held  that  if  the  right  to  return  and  re- 
sume his  home  on  the  leased  premises  was  reserved,  and  if  the 
absence  was  involuntary,  the  homestead  exemption  may  con- 
tinue in  his  favor.* 

Under  the  provision  requiring  actual  occupancy,  it  was  held 
that  one  who  left  his  home  by  advice  of  his  doctor,  and  rented 
it  out  for  a  year  but  averred  his  intent  to  return  and  re-occupy 
at  the  expiration  of  his  lease,  forfeited  his  right  of  exemp- 
tion.' But  this  is  different  where  homestead  declaration  has 
been  filed.  Where  there  is  no  record  notice  to  the  public, 
leaving  the  premises  under  a  tenant  is  abandonment,  notwith- 
standing an  intention  to  resume  occupancy.^ 

It  is  said,  in  defense  of  temporary  leasing:  "The  home- 
stead may  be,  as  is  sometimes  the  case,  the  only  means  of 
maintenance ;  and  it  may  happen  that,  in  order  to  rent  it  and 
derive  from  it  any  means  of  support,  the  dwelling  must  be 

1  Guy  V.  Downs,  12  Neb.  532 ;  West  »  Fisher  v.  Cornell,  70  111.  216 ;  Phe- 
River  Bank  v.  Gale,  42  Vt  27 ;  Pardo  lan's  Estate,  16  Wis.  76,  79 ;  Davis  v. 
V.  Bittorf,  48  Mich.  275.  Andrews,  30  Vt.  678. 

2  Dunn  V.  Tozer,  10  Cal.  171 ;  Aus-  •*  Gates  v.  Steele,  48  Ark.  539. 
tin  V.  Stanley,  46  N.  H.  51 ;  Welz  v.  &  Stow  v.  Lillie,  63  Ala.  257. 
Beard,  12  O.  St  431 ;  Stewart  v.  6  Pollak  v.  Caldwell,  91  Ala.  353 ; 
Brand,  23  la.  477;  Robb  v.  McBride,  10  So.  266;  Ala.  Code,  §§  2515,  2516, 
28  la.  386;  Herrick  v.  Graves,  16  2539;  Stow  v.  Lillie,  63  Ala.  259; 
Wis.  157,  163 ;  StaL  of  Oklohama,  Scaife  v.  Argall,  74  Ala.  473 ;  Murphy 
§  2861.  V.  Hunt,  75  Ala.  438. 


LEASING    THE    I'KEMISES.  573 

temporarily  given  up  to  the  tenant.  '  Thus  the  family  might  — 
sometimes  from  necessity,  sometimes  for  convenio.ico  —  bo 
locally  absent  from  the  homestead  for  years  without  in  any 
degree  affecting  their  rights.  The  law  is  not  concerned  about 
the  precise  locality  of  the  family  at  any  time;  but  it  is  con- 
cerned that,  wherever  tiiey  may  be  carried  by  convenience, 
chance  or  misfortune,  there  shall  be  a  place,  a  sanctuary,  to 
which  they  may  return  to  find  the  shelter,  comfort  and  secu- 
rity of  a  home.'  "  ^ 

In  many  states  the  law  is  ".concerned  about  the  precise  lo- 
cality of  the  family  "  so  far  as  to  require  it  to  be  on  the  ])lace 
claimed  as  exempt.  The  policy  of  the  law  is  not  to  feed  fam- 
ihes  but  to  shelter  them;  rather,  to  protect  the  shelter  which 
they  have.  To  "  be  locally  absent  from  the  homestead  for 
years,"  •'  for  convenience,"'  is  hardly  consistent  with  this  pol- 
icy, when  the  beneficiaries  do  not  really  hold  the  place  as  their 
home  but  as  something  screened  from  creditors. 

A  widow,  devoting  her  house  to  the  uses  of  a  liquor  saloon 
and  dancing  hall,  lived  in  the  upper  story  with  her  daughters. 
Then,  renting  out  the  whole  building  and  moving  away  with 
her  family  and  remaining  away  seven  years,  she  sold  the  prop- 
erty to  secure  borrowed  money,  and  gave  an  absolute  deed. 
After  all  this,  she  successfully  claimed  homestead  in  the  prop- 
erty, averring  that  she  had  intended  to  return  to  it.-  But,  by 
the  law  of  one  of  the  most  liberal  of  the  homestead  states,  her 
claim  would  have  been  denied ;  for  the  rule  is  that,  if  a  part 
of  the  homestead  is  permanently  devoted  to  a  use  mconsistent 
with  that  of  family  residence,  it  loses  its  exempt  character.^ 
In  that  state,  where  "  business  homesteads "  are  allowed,  if 
the  beneficiary  leases  his  store-bouse  from  year  to  year,  he 
thus  abandons  the  benefit.*  But  it  was  permitted  in  another 
state  for  a  dweller  in  his  homestead  to  have  a  building  on  his 

•  Garibaldi  v.  Jones,  48  Ark.  230,  the  same  as  a  homestead,  nor  by  a 

citing  Foreman  v.  Meroney,  62  Tex.  sale   thereof."     Sanborn  &  B."s  An. 

726;  Walters  v.  People,  21  111.178;  Stat,  of  Wis.,  §  2983.     Jarvais  v.  Moe, 

Phipps  V.  Acton,  12  Bush,  375 ;  Dav-  38  Wis.  440 ;  Phillips  v.  Root,  68  Wis. 

enport  V.  Devereaux,  45  Ark.  343.  128;  Zimmer  v.  Pauley,  51  Wis.  282. 

■^McDermottv.  Kernan,  72Wis.268,  ^Langston  v.  Maxey,  74  Tex.  155; 

in  exposition  of  statute :  "Exemption  Newton  v.  Calhoun,  68  Tex.  451. 

shall  not  be  impaired  by  temporary  re-  *  Oppenheimer  v.  Fritter,  79  Tex. 

moval  with  the  intention  to  re-occupy  99;  a«^e,  ch.  VIII. 


574  ABANDONMENT. 

premises,  in  the  rear  of  his  residence,  occupied  by  another, 
who  there  pursued  his  trade  of  carpentry;  and  no  part  of  the 
premises  were  treated  as  having  its  homestead  character  re- 
linquished.' However,  in  another  state,  one  Avho  slept  upon 
his  premises,  but  devoted  most  of  them  to  business  uses,  was 
denied  homestead  exemption  in  any  part  of  them.  He  had 
no  family  living  on  the  property  which  he  claimed  as  exempt, 
and  perhaps  he  would  have  been  denied  homestead  protection, 
under  the  circumstances,  in  almost  every  state.^ 

A  widow,  by  leasing  the  home  property  to  the  heirs,  then 
canceling  the  lease  and  conveying  the  property  to  them,  aban- 
doned her  homestead  right  in  it.^  A  widowed  occupant  of  a 
homestead  left  it,  after  a  year's  residence,  and  leased  it  for 
nine  years.  On  the  ground  that  she  meant  to  return  as  soon 
as  the  growth  of  the  city  should  be  such  as  to  enable  her  to 
carry  on  dress-making  on  the  premises,  the  court  held  that 
she  had  not  lost  her  homestead  right  by  abandonment.^  So, 
when  a  home  was  rented  out  for  a  year,  with  the  intention  of 
returning  at  the  expiration  of  the  lease,  but  was  sold,  upon 
change  of  mind  —  the  purchaser  to  have  possession  at  the  end 
of  the  year,  when  the  lease  would  be  out  — it  was  held  that 
there  had  been  no  abandonment.  A  judgment  rendered 
against  the  owner  was  held  to  bear  no  lien  upon  the  home- 
stead thus  left  and  sold.^ 

An  infant  claimed  homestead  in  premises  that  had  been  oc- 
cupied by  its  father,  who  died  when  the  child  was  a  year  and 
a  half  old  —  his  only  heir.  The  guardian  of  the  child  leased 
the  premises  for  its  benefit  and  took  it  to  live  with  her. 
The  home  of  the  deceased  was  sold  under  a  mortgage  from 
which  there  was  a  surplus  of  proceeds  which  creditors  claimed. 
The  guardian  claimed  that  the  property  was  homestead,  and 
that  the  surplus  belonged  to  her  ward.  After  contest,  the 
court  recognized  the  property  as  homestead,  and  held  that 
the  child's  removal  frbm  it  was  not  abandonment.^ 

1  Layon  v.  Grange  (Kan.),  29  P.  585.  6  Sliirack  v.  Shirack  (Kas.),  24  Pac. 

2  Garrett  v.  Jones  (Ala.),  10  So.  703.  1107;  Hixon  v.  George,  18  Kas.  253 
SDitsonv.  Ditson(Ia.),  52N.  W.  203.  Brinkerhoff  v.  Everett,  88  111.  263 
*  Reilly  v.  Reilly  (111.),  26  N.  E.  604.  Rhorer  v.  Brockhage,  86  Mo.  644 
5  Moore  v.  Flynn,    135   111.    74;  25  Johnston  v.  Turner,  29  Ark.  280. 

N.  E.  844. 


CESSATION    OK    OWNERSHIP.  575 

A  homestead  was  rented  to  a  tenant  by  a  surviving  hus- 
band while  he  ceased  to  occupy  it.  Iloldin;^  legal  possession, 
and  intending  to  return  to  the  place  in  case  he  could  not  sell 
it,  and  finally  returning  and  re-occupying,  he  was  licld  not  to 
have  abandoned  or  forfeited  the  homestead  right,  tliou^-li  he 
had  oifered  the  ))i'operty  for  sale.^ 

The  owner  of  a  hotel  rented  to  a  landlord,  to  be  occupied 
exclusively  as  a  hotel,  is  not  an  occupant  in  the  sense  of  the 
homestead  statute:  so  he  may  sell  without  his  wife's  joinder, 
though  both  board  in  the  hotel.^  But  the  landlord  who  owns 
his  hotel  and  keeps  the  home  of  himself  and  his  family  in  it 
may  hold  it  exempt,*  And  it  has  been  held  that  the  owner  of 
a  hotel  may  rent  it  to  another  and  yet  retain  the  homestead 
exemption,  if  he  continues  to  live  in  it  with  his  family  —  he 
and  they  being  boarders.'* 

Where  the  condition  of  the  benefit  is  actual  occupanc}"  by 
the  resident  owner  and  his  family,  it  is  not  observed  by  rent- 
ing the  premises  to  a  tenant  to  be  occupied  by  him.'  The 
lessor  must  resume  possession  before  levy  if  he  wishes  to  hold 
his  home  as  exem])t.'*  And  when  the  question  of  his  exemp- 
tion right  turns  upon  occupancy,  the  burden  of  proof  is  upon 
him.' 

§  5.  Cessation  of  Ownersliip. 

It  seems  needless  to  say  that  when  the  condition  of  owner- 
ship no  longer  is  observed,  there  can  be  no  continuance  of  the 
exemption  right.  There  are  circumstances,  however,  occur- 
ring from  time  to  time  with  reference  to  homestead  sales  and 
transfers,  which  require  a  passing  notice.  A  surrender  under 
misapprehension  may  lack  the  voluntary  purpose  necessary  to 
constitute  abandonment.  If  a  debtor  has  given  up  his  prem- 
ises to  a  purchaser  at  an  execution  sale  when  such  sale  was 

'  Gregory  v.  Gates  (Ky.),  18  S.  W.  v.  Campbell,  59  Ala.  635 :  Boyle  v. 

231.  Shulman.  59  Ala.  566 ;  Stow  v.  Lillie, 

2  Green  v.  Pierce,  60  Wis.  372 ;  Wis.  63  Ala.  257 ;  Raster  v.  Mc Williams, 

Anno.  Stat.,  s  2983.  41  Ala.  302. 

^Harriman   v.  Queen  Ins.  Co.,  49        ^-Hines  v.  Duncan,  79  Ala.  112. 
Wis.  71  ;  Phelps  v.  Rooney,  9  Wis.  70.         '  Lyne  v.  Wann,  72  Ala.  43  ;  Waugh 

•»  Myers  v.  Ford,  22  Wis.  134.  v.  Montgomery,  G7  Ala.  573;  Blum 

5  Martin  v.  Lile,  63  Ala.  406 ;  Preiss  v.  Carter,  63  Ala,  235. 


576  ADANDONMKNT. 

void,  his  act  is  not  a  relinquishment  of  his  exemption  right.' 
When  a  part  of  the  homestead  came  into  the  possession  of  a 
transferee  under  a  void  title,  there  was  no  legal  abandonment 
of  it.^  But  when  the  part  sold  included  the  family  dwelling, 
and  was  legally  conveyed,  the  rest  lost  its  exempt  character 
in  the  absence  of  any  design  to  erect  a  dwelling  upon  it  and 
use  it  in  preservation  of  the  right.'  Where  the  husband  is 
divested  of  no  vested  right,  and  none  is  vested  in  his  wife  by 
the  homestead  law,  he  can  exercise  the  jus  disjponendi  by 
changing  his  home  before  its  sale.* 

A  nice  question  of  abandonment  was  presented  on  the  fol- 
lowing facts :  Taylor  verbally  agreed  to  sell  his  homestead 
to  De  Arman,  and  gave  him  possession  of  his  dwelling  and 
land,  except  three  rooms  which  he  still  occupied  with  his  fam- 
ily. De  Arman  and  his  family  occupied  all  the  rest  of  the 
house  and  the  land.  Two  weeks  later,  Taylor  gave  De  Arman 
his  conveyance  of  the  property;  and,  so  long  as  he  remained 
afterw^ard,  he  paid  rent  to  the  vendee  for  the  three  rooms ; 
but  he  soon  vacated  the  premises  altogether,  takmg  his  fam- 
ily away  with  him.  The  conveyance  purported  to  be  by  both 
Taylor  and  his  wife;  the  receipt  of  the  price  was  averred,  and 
the  deed  was  acknowledged  by  both,  but  the  certificate  of 
the  wife's  separate  examination  merely  stated  that  she  signed 
"without  fear,  constraint  or  persuasion"  of  her  husband. 
More  than  four  years  after  this  title  had  been  given,  and  full 
possession  thereunder,  suit  was  brought  by  Pierce  to  recover 
this  property,  as  its  purchaser  at  judicial  sale,  in  a  suit  against 
Taylor  instituted  about  a  year  after  he  had  made  his  private 
sale  to  De  Arman.  Pierce  sued  to  eject  Smith,  who  was  the 
grantee  of  De  Arman  and  now  in  possession. 

Did  Taylor  own  and  occupy  the  property  as  a  homestead 
when  he  and  his  wife  made  the  written  conveyance?  If  so,  he 
continued  to  own,  for  the  defect  in  the  wife's  acknowledgment 
was  fatal.^  He  could  not  convey  without  her  legal  signature 
and  acknowledgment,  if  the  property  was  still  a  homestead. 
The  conveyance  being  void,  the  property  became  subject  to 

1  Waggle  V.  Worthy,  74  Cal.  266.  "^Massey  v.  Womble  (Miss.),  11  So. 

2Stinsou  V.  Richardson,  44  la.  378.  188. 

SGivans    v.    Dewey,   47    la.    414;  5  Motes  v.  Carter,  73  Ala.  553 ;  Code 

Windle  v.  Brandt,  55  la.  221.  of  1876  (then  in  force),  §  2822. 


CESSATION    OF    OWNERSHIP.  577 

execution  for  Taylor's  debts  as  soon  as  he  and  his  wife  left  it.' 
It  was  levied  upon  and  sold  under  a  creditor's  judgment  and 
bought  by  Pierce,  as  above  stated.  After  this  judicial  sale, 
Mrs.  Taylor  made  due  acknowledgment  of  the  deed  to  De 
Arman,  to  cure  the  defect  of  the  prior  one,  but  it  did  not  af- 
fect the  validity  of  the  judicial  sale  since  it  could  not  act  retro- 
spectively. 

The  turning  point  is  upon  the  status  of  the  property  after 
De  Arman  had  come  into  possession  of  all  but  three  rooms. 
Was  the  whole  dwelling,  with  the  land,  still  a  homestead, —  i 
the  deed  needing  the  wife's  signature  and  acknowledgment 
to  effect  its  valid  conveyance?  The  court  said  it  was.  The 
verbal  agreement  to  sell  was  void  though  part  or  all  of  the 
purchase-money  had  been  paid.  The  ownership  remained  in 
Taylor,  and  the  court  thought  his  occupancy  of  the  rooms 
under  agreement  with  De  Arman  was  the  same  as  if  he  had 
had  no  such  agreement  but  had  rented  all  the  homestead  to 
De  Arman  except  the  three  rooms.  The  letting  of  a  part 
would  not  have  been  an  abandonment  of  the  whole.^  The 
court  said:  "The  renting  of  the  premises  by  Taylor  from  De 
Arman  did  not  operate  either  to  create  an  abandonment  or 
to  estop  him  from  showing  that  in  reality  the  relation  of  land- 
lord and  tenant  did  not  exist  between  them."  The  verbal 
promise  of  a  homestead  owner  to  pay  rent  to  a  grantee,  when 
the  conveyance  lacked  the  wife's  signature,  was  held  not  to 
defeat  the  policy  of  the  homestead  law.*  If  a  homestead  can 
be  rented  to  a  lessee  and  possession  given  to  a  part  of  it,  and 
the  husband  alone  can  then  sell  it,  "  it  would  enable  husbands 
easily  to  do  by  indirection,  without  the  knowledge  or  even 
suspicion  of  the  wife,  what  they  are  prohibited  positively  by  law 
from  doing  directly."  *  So  it  was  held  the  Taylors  never  had 
sold  their  homestead,  but  that  when  they  moved  wholly  from 
the  premises,  leaving  De  Arman  in  full  possession  under  his 
void  deed,  they  had  abandoned  it  so  that  subsequently  it  was 
validly  sold  under  judgment  and  execution ;  and  Pierce,  the 

1  Striplin  v.  Cooper,  80   Ala.  256 ;  3  Crim  v.  Nelms,  78  Ala.  604. 
Alford  V.  Lehman,  76  Ala.  526.  *  Alford  v.  Lehman,  76  Ala,  529 ; 

2  Pryor  v.  Stone.  19  Tex.  371 ;  S.  C,  Taylor  v.  Hargous,  4  Cal.  268;  S.  C, 
70  Am.  Dec.  350 ;  Phelps  v.  .Rooney,  60  Am.  Dec.  606,  and  note. 

9  Wis.  70 ;  S.  C,  76  Am.  Dec.  244. 
37 


678  ABANDONMENT. 

purchaser,  obtained  good  title,  and  possession  was  given  to 
him  by  the  court.^ 

The  case  was  close.  It  might  plausibly  be  contended  that 
De  Arman  was  the  occupant  of  the  premises  (or  nearly  the 
whole  of  them)  from  the  time  he  entered  with  the  consent  of 
the  Taylors.  Quoad  them,  he  had  not  the  exclusive  right  of 
possession,  since  he  had  no  legal  title,  though  he  had  their 
consent  to  occup}^  as  owner;  but,  quoad  all  the  rest  of  the 
world,  he  had  such  occupancy  as  would  have  enabled  him  to 
claim  homestead  in  the  premises.  Now,  both  he  and  Taylor 
could  not  rightfully  be  each  entitled  to  homestead  protection 
in  the  same  property  at  the  same  time.  Leaving  the  three 
reserved  rooms  out  of  the  question,  who  was  the  occupant  of 
the  rest  of  the  premises  from  the  date  of  De  Arman's  entry 
to  the  final  evacuation  of  the  reserved  rooms  by  the  Taylors, 
when  their  abandonment  became  complete?  If  De  Arman 
was,  and  the  Taylors  were  not,  then  the  sale  of  all  but  the 
three  rooms  could  have  been  made  without  Mrs.  Taylor's  sig- 
nature or  acknowledgment.  If,  on  the  other  hand,  the  Tay- 
lors remained  in  legal  occupancy  of  the  whole,  the  sale  was  a 
nullity,  and  the  property  remained  liable  to  creditors  after  it 
had  been  clearly  abandoned  by  the  Taylors  moving  away 
from  it. 

They  had  no  intention  of  abandoning  it  to  their  creditors. 
There  are  many  decisions  to  the  effect  that  abortive  attempts 
to  sell  the  homestead  to  defraud  creditors  do  not  operate  as 
abandonment  on  the  part  of  the  vendors,  when  the  convey- 
ance has  been  set  aside.  This  decision  looks  in  an  opposite 
direction  (though  no  question  of  fraud  is  involved),  and  may 
lead  to  better  deliverances  on  the  element  of  intention,  as 
affecting  action,  when  homesteads  are  reall}'"  evacuated.  The 
Taylors  had  no  intention  of  retaining  their  homestead.  They 
meant  that  their  occupancy  of  it  should  cease.  They  took  the 
price.  But  they  moved  away  under  the  mistaken  belief  that 
they  had  legally  sold  their  homestead.  The  following  propo- 
sition may  be  deduced  from  the  decision,  though  the  court 
may  not  have  meant  that  it  should  be  stated  so  broadly : 
Moving  from  a  homestead,  without  design  of  returning,   is 

1  Smith  V.  Pearce,  85  Ala.  264,  from  which  the  above  quotations  and  cita- 
tions are  drawn. 


CESSATION    OF   OWNERSHIP.  579 

abandonment,  though  done  under  the  erroneous  impression 
on  the  pai't  of  the  owners  that  they  have  sold  it  and  have  no 
right  to  remain.' 

AVhere  a  cjuitchiim  deed  is  a  grant  under  the  statute,  such 
deed  of  tlie  homestead  is  aban(hjnment.'-  Though  the  liome- 
stead  right  be  not  expressl}^  waived  with  due  acknowledgment 
by  husband  and  wife,  their  surrender  of  the  ])roperty,  after 
giving  deed,  may  be  considered  an  abandonment  of  the  home- 
stead estate,  so  that  the  purchaser  and  possessor  may  get  good 
title.-'  Taking  a  lease  from  the  purchaser  is  evidence  of  aban- 
donment on  the])art  of  the  vendors,  under  such  circumstances.'' 

Abandonment,  as  a  question  of  fact,  is  for  the  jury.  It  should 
be  established  with  reasonable  certainty,  and  it  has  been  held 
not  error  for  the  court  to  charge  the  jury  that  it  must  be 
dear'Iy  proven.'^  The  fact  that  the  householder  requested  a 
witness  to  point  out  for  execution  the  land  he  had  held  as  a 
homestead  may  be  proven  as  tending  to  show  abandonment.* 

Homestead  cannot  be  set  up  to  defeat  an  action  brought  for 
the  purchase  price  by  the  seller  or  by  one  from  whom  the  de- 
fendant obtained  the  property,  if  the  title  had  its  inception  in 
fraud.'' 

1  Decisions  of  the  state,  favoring  Lehman  v.  Bryan,  67  Ala.  558 ;  Boyle 

the  position  of  the  court :  Striplin  v.  v.   Shiilman,   59  Ala.  569 ;  Preiss  v. 

Cooper,  80  Ala.  256 ;  Motes  v.  Carter,  Campbell,   59  Ala.    637 ;  Gafiford    v, 

r^  Ala.  553 ;  Hood  v.  Powell,  73  Ala.  Stearns,  51  Ala.  434. 

171;  Scott  V.   Simons,  70  Ala.  352:  spaivrev.  Daily  (Cat),  29  P.  256; 

Allen  V.  Kellam,  69  Ala.  447 ;  Scar-  Cal.  Civ.  Code,  §  1243. 

borough    V.    Malone,    67    Ala    570;  3  Wiuslow  v.   Noble.   101    III.   194; 

March  v.  England.  65  Ala.  275 ;  Halso  Brown  v.  Coon,  36  III.  243. 

V.  Seawright,  65  Ala.  431 ;  Dooley  v.  ^  Winslow  v.  Noble,  sjfjjro;  Eldridge 

Villalonga,  61  Ala.   129;  Balkum  v.  v.  Pierce,  90  111.  474.     {See  Booker  v. 

Wood,  58  Ala.  644 ;  Miller  v.  Marx,  Anderson,  35  111.  66,  rendered  under 

55  Ala.  322 ;  McGuire  v.  Van  Pelt,  55  a  statute  since  repealed.) 

Ala.  344;  McConnaughy   v.   Baxter,  5  Rollins  v.   O'Farrel,   77  Tex.   90; 

55  Ala.  381;  Hecdon  V.White,  52  Ala.  Langston   v.    Maxey,    74    Tex.    161; 

597  :  Boynton  v.  Sawyer.  35  Ala.  500 ;  Newton  v.  Calhoun,  68  Tex.  451 ;  Cox 

Rainey  v.  Capps,  22  Ala.  288;  Shel-  v.  Shropshire,  25  Tex.  113;  Gouhenant 

ton  V.  Carrol,  16  Ala.  148.     Compare  v.  Cockrell,  20  Tex.  98.      See  cases 

with  the  foregoing  cases :  Bailey  v.  cited,  in  the  first  of  these,  by  counsel 

Campbell,  82  Ala.  343 ;  Tyler  v.  Jew-  to  sustain  the  opposite. 

ett,  82  Ala.  98;  Gates  v.  Hester,  81  eHoUoway  v.  Mcllhenny,  77  Tex. 

Ala.  359 ;  Murphy  v.  Hunt,   75  Ala.  657. 

440 ;  Scaife  v.   Argall,  74  Ala.  473 ;  '  Muir  v.  Bozarth,  44  la,  499. 


580 


abandonmp:nt. 


It  has  been  held  that  an  attempted  assignment  of  home- 
stead, in  favor  of  a  particular  creditor  or  other  person;  though 
abortive,  is  an  abandonment  of  the  exemption  right  on  the 
part  of  the  beneficiary,  which  opens  the  way  to  all  creditors.^ 

§  6.  Family  Headship,  Relative  to  Abaiuloniiient. 

It  is  not  in  the  power  of  the  head  of  the  family  to  destro}*- 
the  homestead  rights  of  the  other  beneficiaries,  by  his  per- 
sonal desertion  of  the  home,  under  the  statutes  of  some  states. 
The  public  welfare,  subserved  by  the  conservation  of  homes, 
is  paramount  to  any  interest,  adverse  to  that  of  the  family, 
which  he  may  claim,  according  to  the  spirit  of  those  statutes. 
IS'ot  only  the  good  of  his  wife  and  children,  but  his  own  home- 
stead privilege,  is  tenderly  cared  for  by  the  legislator;  for,  as- 
suming that  he  is  the  owner,  we  see  that  their  rights  cannot 
be  preserved  without  the  preservation  of  his  also.  The  courts 
have  held  that  his  rights  and  theirs  remain  intact;  that  deser- 
tion of  the  family  by  its  head  does  not  have  the  effect  of  forfeit- 
ing either  his  exemption  right  or  that  of  his  wife  and  children.^ 

On  the  other  hand,  his  loss  of  family  has  been  held  not  to 
terminate  his  exemption  privilege.'  He  could  not  acquire 
homestead  without  a  family ;  for  the  having  of  it  is  one  of  the 
conditions ;  but,  once  acquired,  it  does  not  necessarily  go  from 
him  on  the  loss  of  every  member  of  his  household,  according 
to  the  decisions  cited.  There  is  no  universal  rule  on  this  sub- 
ject ;  there  are  authorities  to  the  contrary  of  the  doctrine  of 
the  cases  above  adduced.* 

Exemption  is  not  affected  by  the  action  of  a  wife  in  quitting 
the  home  against  the  will  of  her  husband,  and  residing  else- 

1  Bowyer's  Appeal,  21  Pa.  St  214.  Woodbury  v.  Luddy,  14  Allen,  1 ; 
So  formerly  held  in  Mississippi.  Woodworth  v.  Comstock,  10  Allen, 
Whitworth  v.  Lyons,  39  Miss.  467.  425 ;    Doyle  v.  Coburn,  6  Allen,  71 ; 

2  Bearing  v.  Thomas,  25  Ga.  223 ;  Stanley  v.  Snyder,  43  Ark.  429 ;  Beck- 
Bonnel  v.  Dunn,  28  N.  J.  L.  155 ;  29  id.  man  v.  Meyer,  75  Mo.  333 ;  Kimbrell 
435 ;  Cadwalader  v.  Howell,  18  N.  J.  v.  Willis,  97  111.  494.  {See  similar  cases 
L.  138 ;  White  v.  Clark,  36  111.  285 ;  in  chapter  on  Family  Headship.) 
Moore  v.  Dunning,  29  111.  135 ;  Drury  *  Santa  Cruz  v.  Cooper,  56  Cal.  839 ; 
V.  Bachelder,  11  Gray,  214 ;  Gambette  Cooper  v.  Cooper,  24  O.  St.  488 ;  Gal- 
V.  Brock,  41  Cal.  78 ;  Benson  v.  Ait-  lighar  v.  Payne,  34  La.  Ann.  1057, 
ken,  17  Cal.  163 ;  Benedict  v.  Bunnell,  and  others  cited  in  chapter  3  of  this 
7  Cal.  245 ;  Cary  v.  Tice,  6  Cal.  626.  work,  where  the  subject  is  discussed. 

3  Silloway  v.  Brown,  12  Allen,  34 ; 


FAMILY    ilEADlsIill'    RELATIVE    TO    ABANDONMENT.  581 

where.  If  he  remain,  keeping  house  to  which  she  may  re- 
turn at  will,  the  homestead  right  continues  intact.' 

If  his  children  remain  with  him,  the  purpose  of  homestead 
legislation  is  answered  by  maintaining  him  in  his  exemption 
privilege.  He  preserves  the  home  to  which  the  wife  and 
mother  may  return.  If^  on  the  other  hand,  his  children  have 
been  taken  from  him  against  his  will,  he  is  not  in  fault. 

The  law  is  that  the  temporary,  or  even  permanent,  aban- 
donment of  the  home  by  the  wife  does  not  affect  the  husband's 
exemption  right.  It  might  affect  that  right,  if  she  should 
live  apart  from  him  permanently,  having  all  the  children  with 
her,  while  he  should  keep  bachelor's  hall  in  the  homestead,  if 
such  family  arrangement  were  hij  his  consent.  But  if,  against 
his  will,  she  desert  the  home,  even  though  she  succeed  in  tak- 
ing some  or  all  of  the  children  with  her,  his  homestead  right 
will  not  be  lost  while  he  remains  under  the  roof  tree  and 
keeps  a  home  to  which  his  family  may  return.^  Though  she 
may  have  instituted  divorce  proceedings  against  him,  if  he 
still  keeps  up  the  home,  though  temporarily  absent,  his  ex- 
emption right  will  remain  unaffected.  His  family  may  have 
been  so  far  broken  up  that  he  has  found  it  expedient  to  sell 
his  furniture  and  admit  other  occupants  to  his  house,  yet 
those  circumstances  will  not  operate  to  destroy  the  exemption 
while  he  retains  possession  and  control  as  the  "head  of  his 
scattered  household.' 

The  wife's  desertion  of  the  husband  because  of  his  viola- 
tion of  marriage  vows,  or  his  ill-treatment  of  her  in  other 
respects,  does  not  necessarily  operate  as  a  forfeiture  of  her 
rights  in  the  homestead  which  he  still  occupies.^ 

It  has  been  held,  however,  that  a  wife  who  has  abandoned 
her  husband  and  habitually  resided  with  another  man  in  a 
different  state  from  that  of  her  lawful  husband's  domicile,  for- 
feits her  right  to  claim  homestead  in  his  estate  after  his 

1  Pardo  V.  BittorfiF,  48  Mich.  275 ;  Barney  v.  Leeds,  51  N.  H.  253 ; 
Gates  V.  Steele,  48  Ark.  539 ;  White-  Meader  v.  Place,  43  N.  H.  307 ;  Atkin- 
head  v.  Tapp,  69  Mo.  415 ;  Brown  v.  son  v.  Atkinson.  40  N.  H.  349 ;  Barker 
Brown's  Adni'r,  68  Mo.  388.  v.  Dayton,  28  Wis.  367 ;  Silloway  v. 

2  Pardo  V.  Bittorf,  48  Mich.  275;  Brown,  12  Allen,  30;  Doyle  v.  Co- 
Earll  V.  Earll,  60  Mich.  30.  burn,  6  Allen,  71 ;  Welch  v.  Rice,  31 

3  Griffin  v.  Nichols,  51  Mich.  575.        Tex.  689. 
*Wood   V.    Lord,   51    N.   H.   448; 


5)82  AUANDONMKNT. 

death.'  And  when  she  has  been  deserted  by  her  husband,  she 
has  no  right  to  homestead  in  lands  acquired  by  him  in  a  state 
where  she  has  never  resided.^ 

The  position  is  maintained  that  a  wife,  not  divorced,  who 
deserts  her  husband,  abandons  his  home,  and  buys  and  occu- 
pies a  home  of  her  own,  is  not  entitled  to  any  homestead 
right  in  his  estate  at  his  death,  as  she  is  to  dower  right.'  And 
when  she  is  divorced,  she  is  no  longer  entitled  to  homestead 
in  her  late  husband's  property.* 

§  7.  Effect  on  the  Wife's  Rights. 

Since  the  homestead  estate  is  the  creature  of  statute,  and 
since  the  family  of  the  owner  have  rights  in  it,  the  legal  owner 
cannot  divest  them  in  any  other  way  than  that  authorized  by 
statute.  He  may  abandon  the  right  which  he  shares  with  his 
wife  and  children.^  So,  if  not  restrained  by  statutory  provis- 
ions, he  may  defeat  the  wife's  rights  in  the  homestead  by 
abandoning  it.^ 

But  if  the  husband  is  restrained  by  statute,  her  interests 
cannot  be  thus  disposed  of  without  her  consent.^  He  may 
change  his  domicile  and  cause  her  to  follow,  yet  the  law  may 
preserve  her  homestead  rights. 

The  sale  of  the  homestead  by  the  husband  alone,  and  his  re- 
moval therefrom  necessitating  his  wife  to  follow  him,  do  not 
deprive  her  of  her  homestead  right  in  the  property  sold.  She 
does  not  abandon  her  right  by  doing  her  conjugal  duty  in  fol- 
lowing her  husband  to  another  residence.  "  The  wife  cannot 
be  compelled  to  elect  between  her  husband  and  homestead."  * 

'Prater    v.   Prater,   87    Teun.   78;  pare   Dunn  v.  Tozer,  10  Cal.   171); 

Lacey  v.  Clements,  36  Tex.  661.  Foss  v.  Strachn,  42  N.  H.  40;  Brown 

2  Stanton  v.  Hitchcock  (Mich.),  31  v.  Coon,  36  111.  243 ;  Titman  v.  Moore. 

N.  W.  395 ;  Emmett  v.  Emmett,  14  43  111.  174 ;  Vasey  v.  Trustees,  59  111. 

Lea,  369.  191 ;  Burson  v.   Fowler,   65  111.  146 ; 

SDickman  v.  Birkhauser,  16  Neb.  Hall  v.  Fullerton,  69  111.  448;  Fiuley 

686 ;  Farwell  Brick  Co.  v.  McKenna,  v.  McConnell,  60  III.  263 ;  Hewitt  v. 

86  Mich.  283.  Templeton,  48  111.  367 ;  McDonald  v. 

*  Burns  v.  Lewis.  86  Ga.  591.  Crandall,   43    111.   331 ;    Fishback  v. 

5  Johnston  v.  Dunavan,  17  Brad.  Lane,  36  111.  437 ;  Jordan  v.  Godman, 
(111.  App.)  59 ;  McMahill  v.  McMahill,  19  Tex.  273 ;  Hand  v.  Winn,  52  Miss. 
105   111.    601;  Trustees  v.  Hovey,  94  788. 

111.  394  ;  McGee  v.  McGee,  91  111.  548 ;        ^  Allison  v.  Shilling,  27  Tex.  450. 
Haskins  v.  Litchfield,  31  111.  137.  8  Collins  v.  Boyett,   87  Tenn.   334 ; 

6  Guiod  V.  Guiod,  14  Cal.  506  (com-    Jarman  v.  Jarman,  4  Lea,  075 ;  Roach 


EFFECT   ON    THE    WIFe's    RIGHTS.  583 

If  the  husband  alone  sells  the  property  on  which  he  lives 
when  it  is  greater  in  quantity  and  value  than  the  amount  al- 
lowed as  homestead,  and  surrenders  it  to  the  purchaser,  it  is 
held  that  his  devisees  cannot  successfully  contest  the  contract 
of  sale,  after  his  death,  on  the  ground  that  the  homestead  por- 
tion was  illegally  alienated.^  The  wife,  however,  who  does 
not  join  in  such  sale,  would  not  have  her  rights  defeated  under 
the  operation  of  most  of  the  statutes.  A  husband  conveyed 
his  old  homestead,  after  having  acquired  a  new  one.  The  wife 
brought  ejectment  against  the  purchaser,  but  did  not  succeed, 
as  she  had  consented  to  the  abandonment  of  the  old  homestead 
by  accepting  the  new  one.-  She  is  bound  by  her  own  volun- 
tary act,  done  under  the  provisions  of  law.  If  she  relinquish 
all  claims  on  her  husband's  estate,  b}'  articles  of  agreement 
duly  executed,  slie  cannot  claim  homestead  in  it  afterwards.' 

When  the  title  is  in  the  wife  while  the  homestead  interest 
is  enjoyed  by  both  her  and  her  husband,  the  abandonment  of 
that  interest  by  both  will  not  expose  the  property  to  liability 
for  the  husband's  debts.^ 

If  the  wife  may  convey  the  homestead  separately  owned  b\' 
her,  without  her  husband's  assent,  it  has  been  said  that  "  there 
would  seem  to  be  no  legal  principle  which  would  prevent  her 
from  voluntarily  deserting  her  husband  and  abandoning  her 
homestead.  She  is  in  no  sense  the  slave  of  her  husband,  and 
is  so  far  the  master  of  her  own  will  that  she  has  liberty  to  re- 
main with  her  husband,  or  go  from  him,  as  she  pleases ;  and 
he  has  no  legal  remedy  to  compel  her  to  return.  A  homestead 
is  an  artificial  estate  in  land,  devised  to  protect  the  possession 
of  the  owner  against  the  claims  of  creditors  while  the  land  is 
occupied  as  a  home.  It  does  not  protect  a  person  in  posses- 
sion against  the  claims  of  the  legal  owner  of  the  land. 

"  If  the  defendant  in  the  suit  had  such  an  occupancy  under 
his  wife  as  to  raise  the  relation  of  tenancy  at  will  on  her  aban- 

V.  Hacker,  2  Lea,  634 ;  Mash  v.  Rus-  659 ;  Parr  v.  Fumbanks,  1  i  Lea,  398 ; 

sell,    1   Lea,   544 ;  Williams  v.  Will-  Gwynne  v.  Estes,  14  Lea,  662. 
iams,  7  Bax.   118;  Coust  Tenn.,  art        '  Lamore  v.  Frisbie,  42  Mich.  186; 

11,  §  11 ;  Code,  §  2114a,  T.  &  S.    Con-  Wallace  v.  Harris,  32  Mich.  880. 
tra:  Levison   v.  Abrahams,    14  Lea,        2  Wlieeler  v.  Smith,  62  Mich.  378. 
336.    See  Creath  v.  Creath,  86  Tenu.        ^  Cilinger's  Appeal,  35  Pa.  St  587. 

*  Hixon  V.  George,  18  Kas.  35a 


584  ABANDONMENT. 

doniiient  of  the  premises,  it  has  been  duly  terminated  by  notice 
to  quit." ' 

The  wife  had  deserted  her  husband  and  given  him  "notice 
to  quit"  their  homestead  on  her  separate  property.  She  then 
brought  an  action  of  ejectment  to  oust  him  —  and  this  was 
the  case.     The  court  ousted  him. 

This  case  seems  to  overlook  the  policy  of  home  conservation, 
and  thus  to  make  a  law  designed  to  foster  families  operate  to 
their  disintegration.  For,  while  it  is  true  that  the  governing 
statute  does  not  require  the  husband's  joinder  to  an  act  of 
homestead  sale  when  the  wife  is  the  owner ;  and  while  it  is 
true  that  a  purchaser  from  her  is  entitled  to  possession,  it  does 
not  follow  that  she  can  eject  her  husband.  Once  ejected,  can 
she  enjoin  his  return?  Most  assuredly  she  cannot.  With 
deference  to  the  court,  the  profession  may  not  all  agree  in 
thinking  its  position  tenable. 

A  wife  who  has  obtained  a  divorce  and  has  left  the  home 
is  not  debarred  from  claiming  her  estate  of  homestead  in  the 
property  which  is  occupied  by  the  husband,  it  has  been  held.- 
Aliter,  when  the  divorce  is  obtained  by  the  husband ;  ^  but 
this  may  not  be  true  in  every  state. 

Occupancy  by  the  owner's  wife  and  minor  children  is  suffi- 
cient to  retain  the  homestead  immunity.  Her  husband's  re- 
quest that  she  join  him  beyond  the  bounds  of  the  state  where 
the  home  is  situated,  and  her  attempt  to  sell  the  premises  for 
that  purpose,  do  not  neutralize  the  effect  of  her  actual  occu- 
pancy with  the  infant  children.*  And  the  homestead  may  be 
valid  when  the  wife  has  never  lived  upon  it.* 

§  8.  Eifect  on  the  Widow's  Rights. 

Where  the  continuance  of  the  homestead  right  and  privi- 
lege depends  upon  the  occupancy  of  the  home  by  some  one  of 

1  Buckingham  v.  Buckingham,  81  permanentlj',  while  his  wife  remained 
Mich.  89,  92.  Compare  Trout  v.  Rum-  to  sell  the  property  and  then  join  him 
ble,  82  Mich.  202.  in  New  Mexico  with  the  proceeda 

2  Dunham  v.  Dunham,  128  Mass.  He  had  rented  land  there,  and  owned 
34.  an  adobe  house  upon  it,  on  which  he 

3  Burns  v.  Lewis,  86  Ga.  S81.  resided.     Under  such  circumstances 
<  McDannell   v.   Ragsdale,  71  Tex     the  Texas  home  was  held  exempt 

23.  In  this  case  the  husband,  and  in-  ^  Moores  v.  Wills,  69  Tex.  109 ; 
solvent  debtor,  left  the  state  of  Texas    Henderson  v.  Ford.  46  Tex.  628.     In 


EFFECT    ON    widow's    KIGHTS.  585 

his  family  after  the  householder's  dcath,^  his  widow  loses  her 
right  of  possession  by  removing  permanently  away.  Whether 
the  wife  leave  during  her  husband's  life-time,  or  his  widow 
quits  the  premises  after  his  demise,  tne  voluntary  abandon- 
ment estops  subsequent  claiming.^  Her  voluntary  removal 
and  establishment  of  a  permanent  home  elsewhere  is  abandon- 
ment, though  she  may  have  been  ignorant  of  her  right  to  re- 
tain the  homestead  for  life.' 

Under  a  law  continuing  the  homestead  to  the  widow  and 
children  provided  some  one  of  them  remain  in  occupancy,  it 
was  held  that  her  retention  of  a  room  for  storing  the  furni- 
ture sufficiently  complied  with  the  requirement  while  she  had 
acquired  no  other  homestead.*  Her  taking  others  into  the 
family  is  not  a  relinquishment  of  its  headship  so  as  to  be  an 
abandonment  of  the  homestead  right.' 

,  The  assignment  of  homestead  to  a  widow  is  a  judicial  rec- 
ognition of  the  fact  that  she  has  not  abandoned  her  right. 
She  may  then  sell  it,  and  the  grantee  will  hold  against  the 
heir,  since  alienation  is  not  abandonment,  it  is  said.^  That  it 
is  not  an  abandonment,  in  such  case,  of  the  exemption  privi- 
lege attached  to  the  property,  seems  the  meaning.  There  is 
abandonment  of  occupancy  by  the  widow. 

A  childless  widow  forfeits  the  homestead  right  derived  from 
her  first  husband,  by  marrying  a  second  one,  when   widow- 
hood is  the  condition  on  which  the  right  is  granted,  and  lim- 
itation to  the  period  of  widowhood  is  expressed.     Though 
there  may  have  been  a  minor  child  of  the  deceased  husband 
living  with  her  when  the  homestead  right  came  to  her  as  the 
survivor  of  the  late  owner  of  the  propert}'^,  yet  that  fact  can- 
Missouri    the    husband    and    father    her  husband,  and  kept  out  by  a  ten- 
does  not  lose  his  homestead  by  the    ant  after  her  husband's  death, 
death  of  his  wife  and  the  completion        3  Paul  v.  Paul,  136  Mass.  286. 
of  his  children's  minority,  if  he  con-        ■*  Brettun  v.  Fox,  100  Mass.  234,  on 
tinues  to  occupy  the  premises.  Beck-    Stat.  Mass.  1855,  ch.  238. 
man  v.  Meyer,  7  Mo.  App.  576.  ^  A  widow  took  her  married  daugh- 

1  Mass.  Stat.  1851,  ch.  840,  §  2.  ter  and  son-in-law  to  her  home  as 

^  Foster  v.  Leiand,  141  Mass.  187 ;     residents,  but  did  not  therefore  cease 
Paul  V.  Paul,  136  Mass.  286 ;  Brettun    to  be  the  head  of  the  family.     Jones 
V.  Fox,  100  Mass.  234 ;  Abbott  v.  Ab-    v.  Blumenstem,  77  la.  361. 
bott,  97  Mass.  136.     The  cases  do  not        ePlummer  v.  White,  101   111.  474. 
cover  the  case  of  a  wife  who  is  invol-    See  White  v.  Plummer,  96  111.  394. 
untarily  driven  from  her  home  by 


586  ABANDONMENT. 

not  avail  her  after  the  death  of  the  child  and  her  own  re- 
marriage.' 

A  lost  homestead  right,  though  the  loss  be  wholly  attrib- 
utable to  the  nefflect  of  the  husband  to  file  a  notice  of  tern- 
porary  removal  w^hen  that  is  required  by  statute,  cuts  his 
widow  off  from  claiming  the  right  as  survivor  after  his  death; 
cuts  off  either  from  claiming  on  surviving  the  other.- 

Long  absence  by  a  widow  without  settled  home  anywhere, 
with  no  definite  time  fixed  for  returning  to  the  homestead 
but  professed  intention  to  settle  in  it  ultimately,  was  held  to 
be  abandonment.^  It  was  said,  however,  that  the  intention  of 
returning  was  not  clearly  shown  by  the  circumstances.^  The 
courts  hold  a  widow  less  strictly  to  actual  occupancy  than  they 
hold  other  homestead  claimants ;  but  she  is  capable  of  aban- 
doning.^ She  would  not  necessarily  be  deemed  to  have  aban- 
doned by  renting  the  premises  to  a  tenant  and  living  elsewhere, 
with  her  children  for  months  and  even  years,  yet  retaining  the 
home  and  meaning  to  re-occupy  it  personally.  In  some  sense, 
the  tenant's  occupancy  is  treated  as  hers.^ 

In  the  absence  of  statutory  rule  to  that  effect,  her  right  is 
not  terminated  by  remarriage.^  Nor  by  ceasing  to  have  a 
family.^  Nor  by  her  late  husband's  deserting  her  and  abscond- 
ing.^ But  when  the  children's  rights  are  not  from  their  father 
but  through  her,  her  permanent  removal,  with  them,  from 
the  homestead,  is  said  to  be  abandonment  of  both  her  rights 
and  theirs.  She  has  the  rightful  custody  of  her  own  children ; 
it  is  argued  she  is  their  legal  and  natural  representative ;  she 
may  conclude  them  by  her  acts  in  this  respect.  Not  so,  as  re- 
gards her  step-children.  Her  relation  to  them  is  so  different 
that  their  rights  of  homestead  remain  in  their  deceased  father's 

1  Dei  V.  Habel,  41  Mich.  88.  36  111.  243 ;  McCormack  v.  Kimniel,  4 

2  Baillif  V.  Gerhard,  40  Minn.   173.     Bradvv.  131. 

Minn.  Gen.  Stat.  (1878),  ch.  68,  §§  1,  6  Kenley  v.  Hudelson,  99  111.  493; 

8,  9 ;  ch.  46,  §  3.  Browning  v.  Harris,  99  111.  456 ;  Buck 

aParnan  v.  Borders,  119  111.  338.  v.  Conlogue,  49  111.  395;  Briukerhoff 

*  lb.;  Titman  v.  Moore,  43  111.   170 ;  v.  Everett,  38  111.  363 ;  Walters  v.  Peo- 

Howard  v.  Logan,  81  111.  383.  pie,  31  111.  178. 

5  Wright  V.  Dunning,  46  111.  372 ;  "  Yeates  v.  Briggs,  95  111.  79. 

Kingman  v.   Higgins,    100  111.  319 ;  «  Kimbrel  v.  Wilhs.  97  111.  494. 

Shepard  v.  Brewer,  65  111.  383 ;  Clubb  » People  v.  Stitt.  7  Bradvv.  294.     See 

V.  Wise,  64  111.  157 ;  Brown  v.  Coon,  p.  580 ;  Dykes  v.  O'Connor,  18  S.  W. 

490. 


EFFECT    ON    WIDOW's    KiriFITS.  587 

property  though  she  should  permanently  remove.'  This  abil- 
ity of  the  mother  to  deprive  the  children  of  homestead  rights 
is  not  to  be  received  as  a  rule.  It  is  not  so  under  all  home- 
stead s)'stems.' 

When  homestead  immunity  is  bestowed  upon  real  estate 
belonging  to  a  husband  and  father,  with  the  accompanying 
provision  that  it  "shall  inure  to  the  benefit  of  his  widow  and 
children,  and  shall  be  exempt  from  sale  in  any  way  at  the  in- 
stance of  any  creditor  or  creditors,"  there  is  a  right  and  inter- 
est conferred  upon  the  widow  and  children  without  power  of 
disposition  unless  all  join.  Neither  the  widow  alone,  nor  the 
children  alone,  can  abandon  such  homestead,  though  doubtless 
either  could  abandon  right  in  it  without  prejudice  to  the 
other.^  The  minor  children's  rights  are  not  lost  because  the 
widow  of  the  owner  from  whom  the  homestead  was  derived 
has  abandoned  her  own  interest  in  it.  They  may  stiil  occupy 
the  home.  If  they  have  been  removed  from  it  by  the  mother, 
they  may  return  to  it.  If  she  unite  with  the  administrator  of 
their  father's  estate  in  executing  a  mortgage  on  the  home- 
stead, the  children's  rights  will  remain  unaffected.  Certainly, 
when  their  interests  are  meant  to  be  sacrificed;  when  the 
transaction  is  not  for  their  welfare,  any  act  or  omission  of 
those  who  should  rightly  represent  them  will  prove  inoperative 
to  divest  them  of  their  homestead  rights.* 

It  has  been  held,  in  exposition  of  statute,  that  a  homestead 
derived  from  a  deceased  husband  cannot  be  forfeited  by  aban- 
donment so  as  to  divest  the  children  of  their  right  in  it ;  but 
that  if  derived  from  a  deceased  wife,  the  children's  right  may 
be  abandoned  by  the  surviving  husband  — just  as  he  might 
have  abandoned  it  in  her  life-time.^  However,  the  widow's 
right  (being  to  remain  for  life  on  the  homestead  left  her  by 
her  husband)  may  be  abandoned  by  her  by  alienation  to  an- 
other person,  which  will  hold  good  as  against  the  heir,  it  has 
been  held  ;^  Aer  heir  would  better  express  the  meaning,  perhaps. 

1  Kingman  v.  Higgins,  100  111.  319,  ■*  Showers  v,   Kobinson,   43    Micli. 
327.  502,  513;  Griffin  v.  Johnson,  37  Mich. 

2  See  McDonald  v.  Logan  Co.  (Ark.),  87,  92;  Allen  v.  Shields,  72  N.  C.  504. 
18  S.  W.  1047.  5  Little's  Guardian  v.  Woodward, 

3  Slielton  V.   Hurst,   16    Lea,   470 ;  14  Bush,  585 ;  Genl.  Stat  Ky.,  ch.  38, 
Ttnn.  Rev.  Code,  §  2114;  Acts  1879,  art.  13,  §  15. 

p.  214;  Hicks  v.  Pepper,  1  Bax.  42.  « Barber  v.  Williams,  74  Ala.  331 ; 


688  ABANDONMENT. 

A  widow  was  not  actually  occupying  the  property  she 
claimed  as  a  homestead,  at  the  time  of  its  sale  under  exe- 
cution against  her.  She  had  resided  Avith  her  niece,  a  mile 
distant,  for  four  years ;  but  she  visited  the  land  occasionally, 
as  the  guest  of  her  married  daughter  who  occupied  it  as  her 
home.  She  had  not  acted  as  housekeeper  or  head  of  family 
there,  during  the  period  mentioned.  She  had  divided  the 
land  among  her  children  —  all  adults.  The  facts  showed  aban- 
idonment.^ 

But  absence  from  the  homestead  for  several  successive  sea- 
sons to  raise  crops  elsewhere,  with  the  intention  of  retaining 
the  home,  is  not  abandonment,'' 

Miller  v.  Marx,  55  Ala,  341 ;  Wallace        ZMcFarland  v,  Washington  (Kj.\ 
y.  Hall,  19  Ala.  367.  14  S.  W.  354» 

1  Crabb  v.  Potter  (Ky.),  14  S.  W.  501. 


CHAPTER  XIX. 


RIGHTS  OF  THE  SURVIVING  SPOUSE. 


,^  L  Continued  Riglit  of  Occupancy. 

2,  Distributive  Share. 

3.  Community  Property. 

4  Title  Vested  in  Survivor. 
5.  Separate  Property. 


§  6.  Widower's  Rights  in  General. 

7.  Widow's  Rights  as  to  Convey- 

anca 

8.  Relative  to  Insurance  on  Home- 

steads. 


§  1.  Continued  Right  of  Occupancy. 

The  statutes  of  the  different  states  are  not  uniform  as  to  the 
respective  rights  of  widows  and  widowers.  All  aim  to  con- 
serve the  home  but  all  do  not  give  rights  to  marital  survivors 
without  partiality  as  to  sex.  Ordinarily,  the  surviving  hus- 
band who  has  minor  children  with  him  continues  to  live  on 
the  homestead  as  the  head  of  the  family,  just  as  he  did  before 
the  loss  of  his  wife.  On  the  other  hand,  the  surviving  wife 
has  her  portion  laid  off  as  homestead,  much  in  the  same  way 
that  dower  is  assigned,  in  some  of  the  states.  There  is  a 
variety  of  provision  for  her  presented  by  all  the  statutes. 
Equality  between  the  widower's  and  the  widow's  right  is  recog- 
nized in  some  states.  The  statutes  of  these  states  vary  in 
their  provisions:  the  survivor  "  shall  be  entitled  to  the  home- 
stead;" "the  exemption  shall  continue  to  the  survivor;"  "the 
homestead  shall  be  for  the  use  of  the  widow  .  .  .  and  in 
like  manner  for  the  use  of  the  surviving  husband."  ^ 

The  law  providing:  "  Upon  the  death  of  either  husband  or 
wife,  the  survivor  may  continue  to  possess  and  occupy  the 
whole  homestead  and  until  it  is  otherwise  disposed  of  according 
to  law;"^  and  declaring  that  the  setting  off  of  the  distributive 
share  of  the  survivor  shall  be  such  disposal,  and  that  he  or  she 
may  elect  between  the  share  and  homestead,  and  that  the  home- 
stead shall  descend  to  heirs,  when  not  devised,  and  be  exempt 
in  their  hands  from  their  parents'  debts,^  it  is  held  that  on  the 

1  Stats.  Colo.,  §  1634 ;  Wy.,  t^  2782 ;  2  lowa  Code,  §  2007 ;  McClain's  la. 

Ky.,  §  577 ;  Ok.,  1375 ;  Arizona,  §  2077 ;  Code,  §  3182. 

Wash.  Code,  §  342 ;  Stats,  of  111.,  Nev.,  »  76.,  §  2008. 
la.,  Cal.,  Idaho,  etc. 


590  RIGHTS    OF    THE    SURVIVING    SPOUSE. 

death  of  the  owning  spouse  the  homestead  descends  to  heirs 
subject  to  the  occupancy  of  the  surviving  spouse,'  free  from 
the  personal  debts  of  the  ancestor,^  and  from  their  own,  con- 
tracted prior  to  his  death, ^  On  the  sale  of  indivisible  realty 
including  the  homestead,  the  widow  has  a  third  of  the  ])ro- 
ceeds  —  not  merely  the  proceeds  of  the  homestead  portion.* 

Under  the  above  quoted  statutory  provision,  it  is  immate- 
rial which  of  the  marital  parties  owns  the  feo,'^  or  whether 
there  are  children  or  not,**  or  whether  the  survivor  remarry 
or  not.'  Though  the  survivor  should  agree  to  take  the  home- 
stead instead  of  the  distributive  share,  such  election  would  not 
secure  title  in  it  beyond  the  right  to  use  and  occupy  during 
life.« 

A  surviving  occupant  cannot  change  the  homestead  to  an- 
other residence  so  as  to  retain  the  exempt  character;^  but, 
while  retaining  possession  of  the  homestead  left  on  the  death 
of  the  husband  or  wife,  he  may  control  the  rents  and  profits,^'* 
and  even  sue  for  injuries  which  molest  the  enjoyment  of  the 
property,  notwithstanding  the  absence  of  title  and  the  liabil- 
ity of  being  divested  of  the  right  of  possession.'^  The  surviv- 
or's right  of  possession,  occupancy  and  enjoyment  of  the 
usufruct  of  the  property  confers  no  title  susceptible  of  con- 
veyance or  subjection  to  judgment  liens.'^  If  the  survivor  be 
a  widow,  her  homestead  right  is  free  from  the  effect  of  a 
judgment  rendered  after  the  husband's  death.''' 

Under  the  provisions  above  stated,  the  surviving  wife  has 
no  estate  in  the  homestead  which  she  is  privileged  to  convey; 
her  right  is  merely  personal;  she  does  not  inherit  it  but  ac- 
cepts a  privilege  accorded  by  law  —  a  privilege  which  would 

1  Johnson  v.  Gaylord,  41  la.  366.  8  Stevens  v.  Stevens,  50  la.  491. 

2  Moninger  v.  Ramsey,  48  la.  368.        9  Size  v.  Size,  24  la.  580.     See  Pal- 

3  Baker  v.  Jamison,  78  la,  699 ;  Kite     mer  v.  Blair,  25  la.  230. 

V.  Kite,  79  la.  491 ;  Johnson  v.  Gay-  '3  Floyd  v.  Mosier,  1  la.  512. 

lord,  supra.  ii  Cain  v.   Chicago  E.    Co.   54   la. 

*  Kite  V.  Kite,  supra.  255. 

5  Burns  v.  Keas,  21  la  257.  12  Meyer  v.  Meyer,  23  la,  359;  But- 

6  lb.  terfield  v.  Wicks,  44  la.  310;  Smith 

7  Nicholas  v.  Purczell,  21  la   265;  v.  Eaton,  50  la  488. 

Stewart  v.  Brand,  23  la.  481;  Stan-       i«  Briggs  v.  Briggs,  45  la  318;  Nye 
ley  v.  Snyder,  43  Ark.  429 ;  Dodds  v,     v,  Walliker,  46  la  306. 
Dodds,  26  la  310, 


CONTINUED    RIGHT   OF   OCCUPANCY.  591 

not  be  denied  her,  though  she  sliould  liave  agreed,  in  an  ante- 
nuptial contract,  to  relinquish  her  riglit  of  dower  and  inherit- 
ance.' The  survivor  may  abandon  this  privilege  so  as  to  leave 
the  estate  open  to  partition ;  ^  but  while  it  is  maintained  by 
occupancy,  there  can  be  no  ])artition  among  heirs,  and  no  in- 
terference of  any  kind  by  them.^  Their  legal  title,  descending 
to  them  as  heirs  immediately  on  the  death  of  the  owner,  is 
thus  subject  to  the  right  of  the  surviving  husband  or  wife  to 
retain  it  as  a  homestead  and  continue  to  occupy  it  as  such.* 
And  while  the  survivor  lives,  and  occupies  it,  the  minor  chil- 
dren cannot  enforce  any  right  or  interest  in  it,  as  above 
stated.'  As  the  legal  owner,  whether  wife  or  husband,  may 
dispose  of  the  homestead  by  will,  subject  to  the  right  of  the 
survivor,  above  expressed,"  it  will  be  understood  that  the  dev- 
isees of  the  testament  would  occupy  the  same  position  as 
that  above  described  respecting  heirs. 

"Where  the  statute  continues  the  homestead  to  the  widow 
during  her  occupancy  of  it,  it  has  been  inferred  that  a  widower 
has  the  same  right ;  that  the  right  is  derivative,  inde])endent 
of  continued  family  relation,  resultant  from  survivorship. 
Though  the  law  may  not  expressly  name  the  husband,  his 
right  has  been  implied  by  construction  of  the  following: 
'•  Exemption  in  favor  of  an  execution  debtor,  or  one  against 
whom  judgment  has  been  rendered,  shall  continue  after  his 
death  for  the  benefit  of  his  widow  and  children,  but  shall  be 
estimated  in  allotting  dower.  The  homestead  shall  be  for  the 
use  of  the  widow  so  long  as  she  occupies  the  same,  and  the 
unmarried  infant  children  of  the  husband  shall  be  entitled  to 
a  joint  occupancy  with  her  until  the  youngest  unmarried  child 
arrives  at  full  age.  But  the  termination  of  the  widow's  occu- 
pancy shall  not  affect  the  right  of  the  children 

The  homestead  of  a  woman  shall  in  like  manner  be  for  the  use 
of  her  surviving  husband  and  her  children,  situated  as  above; 
and  when  his  and  their  interest  ceases,  it  shall  be  disposed  of 
in  like  manner,  and  the  proceeds  applied  on  the  same  terms 

1  Maliaffy  v.  MahafTy,  63  la.  55.  *  Burns  v.  Keas,  21  la,  257 ;  Cotton 

2  Orman  v.  Orman,  26  la.  361 ;  Size    v.  Wood,  25  la.  43. 

V.  Size,  24  la.  580.     See  Johnson  v.        °  Collins  v.  Chantland,  48  la.  241. 
Gaylord,  41  la.  366.  6  Stewart  v.  Brand,  23  la.  477. 

3  Dodds  V.  Dodds,  26  la  311. 


592  RIGHTS    OF   THE    SUKVIVING    SPOUSE. 

to  her  debts;  if  none,  divided  among  the  children.'"'  The 
court,  after  citing  authorities  settling  the  right  of  the  surviving 
widow,^  argued  that  by  parity  of  reason,  a  like  right  must  be 
accorded  to  the  husband  ;  that  such  was  the  legislative  intent.* 

The  person  originally  claiming  homestead  must  own  the 
property  dedicated,  and  have  the  right  to  dispose  of  it.  Those 
who  derive  homestead  right  from  him  must  be  occupants, 
while  the  lesal  title  is  in  his  heirs.*  The  homestead  derived 
from  her  deceased  husband,  by  a  widow,  who  occupies  it,  is 
not  allowed  her  because  of  her^  need ;  she  may  be  otherwise 
rich  in  her  own  right.^ 

The  rule  is  pretty  general  that  the  survivor  has  exemption 
during  occupancy,^  and  some  statutes  make  the  continuance 
of  the  privilege  dependent  upon  occupancy ; '  but  the  require- 
ment that  the  widow  must  live  upon  her  homestead  is  not 
made  in  all  the  states. 

§  2.  Distributive  Share. 

Where  "  the  setting  off  of  the  distributive  share  of  the  hus- 
band or  wife  in  the  real  estate  of  the  deceased  shall  be  .  .  . 
a  disposal  of  the  homestead,"  but  "  the  survivor  may  elect  to 
retain  it  for  life  in  lieu  of  such  share,"  ^  it  is  held  that  no  part 
of  the  homestead  can  be  retained  in  addition  to  the  distribu- 
tive share,^  though  the  whole  may  be  enjoyed  up  to  the  time 
when  such  share  is  set  off.'"  And  the  share  will  not  be  treated 
as  legally  set  apart,  so  as  to  be  a  disposal  of  the  homestead 
right  in  the  survivor  of  the  married  beneficiaries,  by  the  begin- 
ning of  a  suit  by  the  hell's  for  a  partition  of  the  estate ;  or 
even  by  the  willing  of  her  share  by  a  widow,  and  the  subse- 
quent death  of  the  testator.'' 

1  Gen.  Stat.  Ky.,  ch.  38,  §^  13,  14, 15.  v.  Buckley,  52  Tex.  641,  and  Whitten- 

-'Gasavvay  V.  Woods,  9  Bush,  72;  berg  v.  Lloyd,  49  Tex.  633. 

Eustacbe  v.  Rodaquest,  11  Bush,  42;  'Tidd  v.  Quinn,  52  N.  H.  341.     See 

Gay  V.  Hanks,  81  Ky.  552.  Locke  v.  Rowell,  47  N.  H.  46. 

« Ellis  V.  Davis  (Ky.),  14  S.  W.  74.  «  McC.'s  la.  Code,  §  3183. 

*  Allensworth    v.    Kimbrough,    79  9  Meyer  v.  Meyer,  23  la.  359 ;  But- 

Ky.  332.  terfield  v.  Wicks,  44  la.  310 ;  White- 

5  Sansberry  v.  Simms,  79  Ky.  527.  head    v.   Conklin.   48    la.   478.     See 

«  Eubank  v.  Landram,  59  Tex.  247 ;  Nicholas  v.  Purczell,  21  la.  265. 

Schneider  v.  Bray,  59  Tex.  668 ;  Blum  'o  Burdick  v.  Kent,  52  la.  583. 

V.   Gaines,   57  Tex.    119 ;  Kessler  v.  "  Mobley  v.  Mobley,  73  la.  654.   The 

Draub,  52  Tex.  575.     Compare  Wolfe  occupancy  of  a  homestead  under  a 


DISTRIBUTIVE    SHARE.  593 

Where  dower  and  homestead  right  are  made  incompatiblt^ 
but  tlie  surviving  husband  or  wife  may  elect  either,  reason- 
able time  for  election  is  allowed ;  and  during  that  time  the 
survivor  may  still  occu])y  the  homestead  and  enjoy  its  fruits;' 
but  when  the  decision  is  much  delayed,  especially  when  the 
life  enjoyment  of  the  property  is  more  valuable  than  dower 
in  the  estate  would  be,  the  survivor  may  be  presumed  to  have 
chosen  the  former.-  The  acceptance  of  the  homestead  for  life 
is  not  a  relinquishment  of  the  distributive  share  otherwise 
coming  to  the  survivor,  when  there  are  no  children  or  other 
descendants  and  that  share  is  more  than  one-third  of  the  es- 
tate. "Whatever  may  be  coming,  beyond  the  one-third  by 
dower  right,  may  be  accepted  with  the  homestead.' 

When  the  widow  heirs  half  her  late  husband's  estnte,  she 
cannot  be  forced  to  include  the  homestead  therein.*  But  if 
she  choose  to  take  her  distributive  share  and  have  the  home- 
stead laid  off  to  her,  it  will  continue  to  remain  inviolable  as 
to  debts  antecedent  to  its  first  dedication.' 

Where  the  homestead  descends  to  heirs  exempt  from  their 
"antecedent  debts"  or  those  of  their  parents,  the  quoted 
words  mean  debts  prior  to  the  descent  —  not  prior  to  the  orig- 
inal dedication  of  the  homestead."  And,  in  the  hands  of  the 
heirs,  it  is  not  essential  that  it  be  occupied  by  them  as  a  home- 
stead in  order  to  retain  its  inviolability  from  such  anterior  in- 
debtedness.^ Abandonment  of  her  rights  to  the  homestead, 
by  the  widow,  leaves  the  property  in  the  hands  of  the  heirs 
perfectly  free  from  the  debts  of  the  ancestor  not  antedating 

devise  of  a  life  estate  of  land  includ-  Stevens,     50    la.    491 ;     Thomas    v. 

ing  the  homestead,  held  not  an  elec-  Thomas,   73    la.    657 ;    Holbrook    v. 

tion   defeating  the    widow's    dower  Perry,  66  la.  286. 

right.     Blair  v.  Wilson,  57   Ta.    177.  s  Smith  v.  Zuckmeyer,  53  la.  14. 

The  widow  does  not  lose  her  right  *  Nicholas  v.  Purczell,  21  la.  265. 

of  homestead  in  the  husband's  estate  5  Briggs  v.  Briggs,  45  la  318;  Knox 

by  accepting   his  will,  unless   so   in-  v.  Hanlon,  48  la.  252. 

tended  by  him.     Re  Wells'  Estate,  63  6Moninger  v.  Ramsey,  48  la.  368; 

Vt  116.  McC.'s  Ta.  Code,  §  3183  (2008).     Not 

1  Cunningham  v.  Gamble,  57  la.  even  liable  for  the  funeral  expenses 
46.  of   the  deceased   homestead  holder. 

2  Conn  V.  Conn,  58  la.  747,  where  Knox  v.  Hanlon,  48  la.  252. 

a  widow  delayed  ten  years;  Butter-        'Johnson  v.  Gaylord,  41  la.  362; 
field  V.  Wicks,  44  la,  310;  Stevens  v.     Baker  v.  Jamison,  73  la.  698. 
38 


594  EIGHTS    OF    THE    SUKVIVING    SPOUSE. 

the  dedication.^  The  method  of  abandonment  by  the  survivor 
of  a  married  pair,  when  the  deceased  was  owner  of  the  fee  in 
the  homestead,  is  by  electing  to  accept  the  distributive  share ;  ^ 
but  if  such  survivor  die  in  possession  of  the  homestead  and 
the  share  has  not  been  set  off,  the  heirs  take  free  from  his  or 
her  debts.^  If  conveyed  by  both  husband  and  wife,  subject 
to  their  occupancy  and  that  of  the  survivor  during  life,  it  was 
held  that  the  grantee  (who  was  their  son)  did  not  succeed  them 
to  the  homestead  exemption  right.  It  was  liable  to  forced 
sale  for  his  debts.^  The  homestead  of  a  decedent  is  liable  for 
his  debts  to  the  same  degree  as  when  he  was  living.^ 

§  3.  Community  Property. 

The  community  property  created  by  marriage  is  not  a  part- 
nership.^ It  resembles  one;  but  the  husband,  as  head  of  the 
community,  manages  the  property  at  will,  alienates  it  at 
pleasure  and  incumbers  it  without  the  wife's  joinder.  lie 
cannot  devise  more  than  his  residuum  beyond  the  community 
debts ;  cannot  devise  his  wife's  half  interest.  He  is  personall}^ 
responsible  for  the  debts  which  do  not  have  to  look  alone  to 
community  assets. 

In  the  civil  law  state,  homestead  is  exceptional.  It  is  not 
assigned  to  a  surviving  wife  if  she  is  worth  the  sura  of  two 
thousand  dollars  in  her  own  right  —  that  sum  being  the  ex- 
emption limit.  It  is  only  to  poor  debtors  and  needy  widows 
and  orphans  that  the  benefit  is  given.  And  the  rights  of  the 
widow  and  minor  children  of  a  deceased  householder  are  con- 
sidered in  view  of  their  condition  when  he  died  —  not  Avhen 
his  estate  was  settled.' 

1  Johnson  v.  Gaylord,  41  la.  362 ;  Ann.   819 ;  Succession  of  Marx,    27 

Bradshaw  v.  Hurst.  57  la.  745.  La.  Ann.  99 ;  Succession  of  Norton, 

^Darrah  v.   Cunningham,   72    la.  18  La.  Ann.  38;  Ginible  v.  Goode,  13 

123.  La.  Ann.  353 ;  Succession  of  Edwards, 

3 Burdick  V.  Kent,  52  la.  583.  32  La.  Ann.  457.     Article  3552  of  the 

^Reifenstahl  V.  Osborne,  66  la.  567.  Civil    Code  of    Louisiana    (revised) 

5  White's  Adm'r  v.  White,  63  Vt.  makes  only  necessitous  widows  and 
577.  minors  entitled  to  privilege  as  credit- 

6  La.  Civil  Code,  art.  2807.  ors  for  their  homestead   allowance. 
"  Succession   of  Lessassier,  34   La.     But  articles  219  and  223  of  the  present 

Ann.  1066,  in  exposition  of  Louisiana  constitution  govern.  See  State  v. 
Act  of  1852  relative  to  homestead.  Judges,  37  La.  Ann.  109.  In  Louis- 
Succession    of    Wellmeyer,    34    La.     iaua  it  was  held  that  minors,  under 


COMMUNITY   PKOPERTY.  595 

A  necessitous  widow  of  a  second  marriage  was  held  entitled 
to  the  full  amount  of  homestead  exemption  from  the  acquets 
and  gains  constituting  the  community  property  of  her  de- 
ceased husband  and  his  first  wife.  Her  privilege  Avas  ranked 
above  a  mortgage  given  by  them —  the  deceased  husband  and 
wife  as  partners  of  that  communit}^  —  to  their  creditors.' 
And  a  case  somewhat  similar  is  rcjiorted  from  another  state 
which  has  adojited  some  of  the  jn-inciplcs  of  the  civil  law,  and 
which  has  what  her  courts  have  characterized  as  a  "  mixed 
system  of  jurisprudence."  There  the  homestead  law  is  not  a 
mere  charitable  provision  for  the  impecunious  but  a  means  of 
enabling  the  owmer  to  dedicate  property  to  the  extent  of  five 
thousand  dollars  in  value,  and  to  hold  it  exempt  from  liability 
for  his  debts.  There,  a  husband  and  wife  had  declared  their 
homestead  upon  their  communit}^  property.  He  proved  to  be 
the  survivor.  lie  married  a  second  time  and  then  died,  leav- 
ing a  widow.  She  and  the  step-children  caused  the  property, 
that  had  been  held  in  community  under  the  first  marriage,  to 
be  partitioned :  half  to  the  heirs  of  the  deceased  wife ;  the  other 
half  to  herself  to  be  held  as  her  homestead  during  her  occu- 
pancy of  it  as  such.  No  offspring  had  resulted  from  the  sec- 
ond marriage :  so  the  children  of  the  first  inherited  all  the 
property,  but  subject  to  the  widow's  homestead  right  of  occu- 
pancy of  one-half  the  property .^ 

A  husband  and  wife  owned  land  Avhich  was  not  homestead. 
She  died  and  left  children.  lie  remarried,  and  then  died  in- 
solvent, leaving  children  by  both  marriages,  and  a  Avidow. 
The  county  court  set  off  homestead  to  the  widow  and  both 
sets  of  children.  On  appeal,  it  was  held  that  the  first  wife's 
interest  was  inherited  by  her  children,  and  therefore  could 

the  tutorship  (guardianship)  of  their  erty  by  the  civil  law,  and  has  it  in 

father,   are  not  beneficiaries  of  tlie  Louisiana,   but    not    as    homestead. 

homestead  provisions.     Greig  v.  Eas-  She  has  it  by  right  as  equal  partner 

tin,  30  La.  Ann.  1130.     Necessitous  in  the  community. 

grandchildren  who  are  minors  took  a  •  Succession  of  Cason,  32  La.  Ann. 

deceased  widow's  unpaid  homestead  790. 

amount    of    exemption,    instead    of  2Qiiiiam    v.    Null,    58    Tex.    298; 

major  children,  under  the  Louisiana  Pressley's  Heirs  v.  Robinson,  57  Tex. 

Act  of  1852.    Succession  of  Durkin,  453 ;  Texas  Const  of   1876,   art  16, 

30  La.  Ann.  669.     The  widow  is  en-  §  53. 

titled  to  half  the  community  prop- 


596  EIGHTS    OF   THE    SUKVIVINO    SPOUSE. 

not  be  set  off  to  the  widow  and  both  sets  of  children ;  and  that 
upon  the  husband's  death  the  statute  gave  homestead  to  the 
widow  and  children  who  were  occupying  the  home.^ 

A  homestead  should  not  be  partitioned  among  heirs  while 
minor  children  with  their  father,  or  he  alone,  may  be  actu- 
ally occupying  it,  nor  while  the  probate  court  recognizes  its 
occupancy  by  the  minors'  guardian  as  valid  within  the  pro- 
visions of  the  homestead  law.  This  is  held,  though  the  de- 
ceased mother  of  the  minors  and  other  heirs  may  have  coin- 
munity  interest  in  the  property.^  "  The  homestead  is  preserved 
in  entirety  for  the  use  of  the  widow  during  her  life,  and  the 
children  during  their  minority,  and  cannot  be  partitioned 
until  after  her  death;  .  .  but  as  to  common  property 
other  than  the  homestead,  it  is  subject  to  partition  at  the  suit 
of  any  one  or  m.ore  of  the  tenants  in  common."  ■'' 

The  surviving  father  or  mother  cannot  sell  community 
property  so  as  to  divest  the  heirs  of  the  deceased  of  their  half 
of  it  —  not  even  to  support  the  family.  A  probate  court 
could  order  the  sale  of  their  interest  for  their  support,  if  ne- 
cessity should  demand  it.  All  the  community  may  be  sold  to 
pay  community  debts.^  It  is  held  that  a  widow,  clothed  with 
homestead  protection  to  her  separate  propert}?-,  may  burden 
it  with  a  deed  of  trust  which  will  pass  title;  but  if  community 
property  be  thus  burdened,  or  conveyed  in  terms,  her  interest 
only — the  half  —  is  really  affected.^ 

The  law  which  suspends  the  operation  of  prescription  against 
a  wife  during  coverture  does  not  apply  to  actions  involving 
the  homestead  designated  upon  the  husband's  separate  prop- 
erty or  upon  community  property.  She  can  sue  during  cov- 
erture, in  her  own  name,  in  either  case,^ 

If  the  husband  has  sold  community  property  constituting 
the  homestead,  without  joinder  by  his  wife,  she  may  recover 


1  McDougal  V.  Bradford,  80  Tex.  5  Grothaus  v.  De  Lopez,  57  Tex,  670. 
558.  ^  Hussey  v.  Moser,  70  Tex.  42  (dis- 

2  Adair  v.  Hare,  73  Tex.  273 ;  Hudg-  tinguished  from  Simontou  v.  IMay- 
ins  V.  Sansom,  72  Tex.  229.  See  Wat-  blum,  59  Tex.  7,  and  Smith  v.  Uzzel, 
son  V.  Rainey,  69  Tex.  319.  61   Tex.   221) ;   Rev,   Stat.  Tex.  3201, 

3  Linch  V.  Broad,  70  Tex.  96.  construed ;   Kelly  v.   Whitmore,    41 

4  Bell  V.  Schvvarz,  56  Tex,  353;  Tex,  647,  See  Rogers  v.  Trevathan,  67 
Thompson  v,  Cragg,  24  Tex.  597.  Tex,  406, 


COMMUNITY   PROPERTY.  597 

it  of  the  purchaser  after  tlie  husband's  dcatli,  and  it  will  go 
to  her  and  to  his  heirs  —  she  taking  half.' 

The  honiestead,being  on  community  property,  the  surviving 
wife  has  such  estate  in  it  as  will  enable  her  to  maintain  suit 
in  her  own  name  for  damages  done  to  it.^  The  heirs  may  be 
made  parties,  since  they  inherit  their  father's  half  interest,  all 
subject  to  community  debts  and  the  homestead  rights  of  the 
surviving  parent.'  But  when  a  community  homestead  was 
sold  to  ]iay  a  community  debt  evidenced  by  deed  of  trust 
made  by  both  husband  and  wife  —  the  sale  made  after  the 
husband  had  died  insolvent  —  the  purchaser  w^as  held  to  have 
no  title  as  a^^ainst  the  widow's  homestead  rights.'' 

The  husband,  surviving  his  wife,  may  sell  community  ])rop- 
erty  to  pay  community  debts,  though  it  be  the  homestead  and 
though  a  minor  child  of  their  marriage  be  living.^  The  pur- 
chaser, with  notice,  cannot  resist  the  claim  for  purchase-money 
under  such  circumstances.^ 

A  widower  mortgaged  the  homestead,  giving  power  to  sell 
it,  partly  to  secure  a  community  debt.  After  the  sale,  letters 
of  administration  on  the  deceased  wife's  estate  were  issued, 
and  a  guardian  appointed  to  his  and  her  minor  cljild.  The 
probate  court  ordered  the  sale  of  the  homestead  (after  having 
set  it  apart  to  the  minor  as  the  homestead  of  his  deceased 
mother),  to  apply  the  proceeds  as  an  allow^ance  to  the  minor 
in  lieu  of  exempt  property  and  of  the  year's  supply  due  him. 
The  purchaser  at  the  mortgage  sale  came  into  litigation  with 
the  purchaser  at  the  probate  sale,  quite  inevitably.  He  was 
successful,  since  the  husband  had  the  right  to  dispose  of  com- 
munity property  to  pay  community  debts,  while  the  probate 
court  had  no  right  to  give  to  the  minor  the  homestead  of  his 
parents  while  the  father  yet  lived.' 

1  Hair  v.  Wood,  58  Tex.  77 ;  Sossa-  =  Fagan  v.  McWhirter,  71  Tex.  567 ; 
man  v.  Powell,  21  Tex.  664 ;  Williams    Ashe  v.  Yungst,  65  Tex.  635. 

V,  Wethered,  37  Tex.  133.  ^Ih.;  Neyland  v.  Nejdand,  70  Tex. 

2  Railroad  Co.  v.  Knapp,  51  Tex.  24;  Carson  v.  Kelly,  57  Tex.  380; 
593.  Cooper    v.    Singleton,    19  Tex.  260; 

3  Wright  V.  Doherty,  50  Tex.  34.  Brock  v.  Southwiek,  10  Tex.  65. 

*  Black  V.  Rockmore,  50  Tex.  88  (on  7  Watts  v.  Miller,  76  Tex.  18 ;  Ashe 

Paschal's  Dig.,  arts.   4710,  5023,  5494,  v.  Yungst,  65  Tex.  631 ;  Fagan  v.  Mc- 

5497,  Act  of  1870);  Thornton  v.  Mur-  Whirter,  71  Tex.  567 ;  Lacy  v.   Rol- 

rav.  50  Tex.  IGl.  lins,  74  Tex.  566;  Smith  v.  Von  Hut- 


598  EIGHTS    OF   THE    SURVIVING    SPOUSE. 

As  the  husband  lias  disposition  of  the  community,  as  its 
head,  while  his  equally  interested  wife  is  still  living,  so  he  as 
survivor,  on  becoming  the  partner  in  community  existing  be- 
tween him  and  the  equally  interested  children,  may  have  the 
right  of  disposal  continued  by  compliance  with  whatever  may 
be  statutorily  required  when  this  power  is  conferred  (such  as 
filing  inventory,  etc.).^  His  right  might  be  suspended,  how- 
ever, for  homestead  purposes  or  lost  by  remarriage.^  The 
general  rule  is,  however,  that  the  homestead  benefit  is  not 
lost  by  remarriage  unless  there  is  a  statute  so  providing.' 

§  4.  Title  Tested  in  Survivor. 

Under  a  statute  vesting  the  homestead  wholl}'-  and  abso- 
lutely in  the  surviving  husband  or  wife,  when  it  has  been 
carved  out  of  the  community  property,^  it  has  been  held 
that  though  the  dedicated  property  be  above  the  monetary 
limit  of  five  thousand  dollars,  the  surviving  spouse  may  take 
the  whole  absolutely  if  it  was  within  the  limit  when  selected.' 
The  rule  is  different,  if  the  homestead  was  excessive  in  value 
at  the  time  of  the  selection.^  In  the  case  last  cited,  it  was 
said  by  a  dissenting  judge  that  the  homestead  held  to  descend 
absolutely  to  the  survivor  was  worth  forty-five  thousand  dol- 
lars. He  construed  the  code  to  limit  homestead  to  five  thou- 
sand dollars  in  all  cases,  and  contended  that  the  overplus  — 
forty  thousand  dollars  —  ought  to  go  to  the  creditors  or  to 
the  legal  heirs, 

ton,  75  Tex.  625.     Evt       a  case  of  a  may  have  been  awarded  to  the  wife, 

divorce,  while  the  district  court  de-  Roberts  v.  Mondy,  30  Neb.  685. 

creeing  it  may  dispose  of  the  home-  i  Johnson  v.  Taylor,  43  Tex.  121 ; 

stead  to  protect  the  wife  and  minor  Clark  v.  Nolan,  38  Tex.  416 ;  Cordier 

children,  it  cannot  deprive  the  hus-  v.    Cage,   44    Tex.   532 ;    Dawson  v. 

band  of  his  half  of  the  community  Holt,  44  Tex.  174;  Jones  v.  Jones,  15 

propertJ^     Kirkwood  v.  Doninau,  80  Tex.  147. 

Tex.  645.  If  the  divorce  is  against  ^  Kirkland  v.  Little,  41  Tex.  460. 
the  wife,  she  cannot  have  homestead  ^  Miles  v.  Miles,  46  N.  H.  261 ;  Nich- 
set  off  to  her  from  the  family  home-  ols  v.  Purczell,  21  la.  265.  See  Brig- 
stead  property  belonging  to  the  hus-  ham  v.  Bush,  33  Barb.  596. 
band;  but,  as  guardian  of  minor  chil-  ^  California  Code  of  Civil  Proc, 
dren,  she  may  claim  their  rights.  g§  1265.  1465;  Estate  of  Crogan,  92 
Hall  V.  Fields,  81   Tex.  553.     If  the  Cal.  370. 

divorced  husband  still   supports  the  '>  Estate   of  Burdick,   76  Cal.   639 ; 

children,  he  is  the  head  of  the  family,  Cal.  Code  Civ.  Proc,  §  1474. 

though  the  custody  of  the  children  6  jf,..  ig  1476. 


TITLE    VESTFD    IN    SURVIVOR.  599 

Under  a  prior  law,  the  widow's  probate  homestead,  carved 
out  of  community  property,  became  hers  in  fee  only  in  case 
there  were  no  minor  children,'  but  under  the  articles  of  the 
code  above  cited  she  takes  absolutely  on  her  husband's  death, 
and  he  so  takes  upon  her  death.-  As  the  property  is  still  ex- 
empt in  her  hands,  it  cannot  be  sold  by  foreclosure  of  a  mort- 
gage given  by  both  him  and  her,  unless  the  claim  be  presented 
against  his  estate  within  the  time  allowed  for  the  presentation 
of  claims.*  Either  spouse,  surviving,  may  have  a  homestead 
declared  on  community  property  which  will  be  exempt  yet  be 
vested  absolutely  in  the  survivor.''  A  homestead,  carved  from 
community  property,  conveyed  to  the  wife  in  consideration  of 
her  consenting  that  it  be  sold  free  from  her  right  of  homestead 
therein,  may  be  sold  without  rendering  the  proceeds  liable  for 
the  husband's  debts.^ 

Community  property  was  made  the  homestead.  Upon  the 
death  of  the  wife,  the  widower  remarried ;  and  upon  his  death, 
the  heirs  of  the  first  wife  had  half  the  homestead  accorded  to 
them,  and  the  other  half  was  decreed  to  the  widow  (the  sec- 
ond wife),  for  life.  Upon  her  remarriage,  and  her  permanent 
removal  from  the  homestead,  it  was  decided  that  her  life 
estate  in  the  half-homestead  depended  upon  her  occupancy  of  it. 
It  was  a  life-estate  determinable  by  marriage  and  removal.^ 

Homestead  community  ])roperty,  under  a  constitutional 
provision  giving  it  to  the  survivor,  was  held  to  be  taken  ab- 
solutely, on  the  death  of  one  spouse,  by  the  other,  so  that  a 
widow,  thus  taking,  was  not  a  life-estate  holder  merely.  The 
property  could  not  be  applied  to  the  deceased  husband's  debts 
at  her  death.^     Such  property  is  not  reckoned  among  the  as- 

1  McKinnie  v.  Shaffer,  74  Cal.  614.  of  Heaclen,  53  Cal.  295 ;  Mavvson  v. 
The  law  existing  in  1879.  Mawson,  50  Cal.  539. 

2  Building  Ass'n  v.  King,  83  Cal.  5  Blum  v.  Light,  81  Tex.  415 ;  16  S. 
440 ;  Estate  of  Ackerman,  80  Cal.  209 ;  W.  1090. 

Cal.    Civ.    Code,    §  1265 ;   Code    Civ.  e  Craddock  v.  Edwards  (Tex.),  17  S. 

Proc,  §§  1474-5.  W.  228. 

3  Camp  V.  Grider,  62  Cal.  20 ;  Boll-  ^  Const.  Texas,  art.  16,  §  52 ;  Cam- 
inger  v.  Manning.  79  Cal.  7 ;  Building  eron  v.  Morris  (Tex.),  18  S.  W.  422 ; 
Ass'n  V.  King.  83  Cal,  440.  Zwernemann  v.  Von  Rosenberg,  76 

4  Estate  of  Ackerman,  80  Cal.  208 ;  Tex.  522 ;  Childers  v.  Henderson,  76 
Herrold  v.  Reen.  58  Cal.  443 ;  Gagli-  Tex.  664.  It  was  held  in  an  early 
ardo  V.  Dumont,  54  Cal.  496 ;  Estate  case  that  the  survivor  became  tenant 


600  KIGIITS    OF    TIIK    SUKVIVINO    SPOUSE. 

Sets  of  the  dccetlent's  estate.  It  is  not  to  be  administered 
or  distributed.  The  order,  setting  it  a])art  from  community 
property,  does  not  affect  the  title.  It  reserves  the  property 
set  apart  during  the  time  it  is  used  for  homestead  purposes, 
but  the  title  vests  at  once.^ 

The  decisions  cited  in  this  section  seem  to  have  been  ren- 
dered with  reference  to  community  property  considered  as 
property  held  in  joint-tenancy  by  husband  and  wife  rather 
than  as  community  property  under  the  civil  law.  In  an  early 
case,  it  was  denied  that  the  surviving*  wife  took  the  homestead 
by  right  of  survivorship  arising  from  joint-tenancy,  but  held 
that  she  took  it  as  property'  set  apart  from  her  husband's  es- 
tate for  the  benefit  of  herself  and  the  children.^ 

§  5.  Separate  Property. 

The  policy  of  the  homestead  laws  being  to  conserve  the 
family  institution  for  the  good  of  the  commonwealth,  it  would 
fall  short  of  this  end  if  protection  were  not  vouchsafed  to 
a  marital  survivor  with  dependent  children.  Chief  Justice 
Hemphill  said  of  a  constitutional  provision  (since  superseded), 
which  authorized  the  protection  of  the  homesteads  of  families 
but  was  silent  as  to  the  rights  of  the  surviving  spouse,  that 
the  object  would  be  defeated  if  property,  exempt  during  cov- 
erture, should  become  liable  on  the  death  of  husband  or  wife.- 
In  his  state,  the  survivor  of  a  marriage  holds  despite  heirs, 
creditors  or  lack  of  children,  under  the  constitution ;  and  it  is 
immaterial  whether  the  title  w^as  previously  vested  in  the 
survivor  or  the  deceased  spouse,  or  was  community  property.^ 
But  the  survivor  cannot  successfully  claim  homestead  when 

in  common  with  the  children  of  the  a  statute  since  superseded.     Thegov- 

deceased.     Cooper  v.  Singleton,    19  erning  law,  as  to  the  rights  of  the 

Tex.  2G9.  survivor,  is  that  existing  at  the  death 

'  Estate  of  Gilmore,  81   Cal.  240 ;  of  the  decedent  spouse.    Gruwell  v. 

Estate  of    Hardwick,   59    Cal.   292 ;  Seybolt,  82  Cal.  7 ;  Tyrrell  v.  Baldwin, 

Harrold  v.  Eeen,  58  Cal.  443 ;  Watson  78    Cal.   470 ;    Johnston  v.    Savings 

V,  His  Creditors,  58  Cal.  556 ;  Estate  Union,  75  Cal.  134. 

of  Burton,  63  Cal.  36.  The  homestead  3  Wood  v.  Wheeler,  7  Tex.  21. 

set  apart  by  the  probate  court  may  *  Eubank  v.  Landram,  59  Tex.  247 ; 

exceed   $5,000   in   value.     Estate   of  Carter    v.    Randolph,  47  Tex.    380; 

Walkerly,  81  Cal.  579.  Bremer  v.  Wall,  33  Tex  585. 

2  Gee  V.  Moore,  14  Cal.  472,  under 


SEPARATE    PROPERTY. 


COl 


the  title  of  her  deceased  husband  is  barred  by  statute,  since 
there  is  no  estate  to  sui)port  it.^ 

By  the  provision :  "  The  homestead  property  selected  by 
the  husband  and  wife,  or  either  of  them,  .  .  .  shfll,  u{)on 
the  death  of  the  husband  or  wife,  vest  absolutely  in  the  sur- 
vivor," after  the  demise  of  either,  the  power  to  mortgage  is 
in  the  widow  or  widower  as  the  case  may  be.  The  title  is  not 
changed  by  the  ])robate  court's  setting  out  a  homestead  fov 
the  benefit  of  the  survivor  and  the  children  of  the  deceased.' 
This  provision,  which  declares  that  property  selected  by  the 
husband  from  his  separate  property,  or  by  the  wife  from  hers, 
shall  vest  absolutely  in  the  survivor,^  does  not  prevent  the 
heirs  or  devisees  from  taking  if,  without  his  consent,  property 
of  his  estate  be  set  apart  as  a  family  homestead  by  the  court.* 
It  can  be  made  a  homestead  only  of  a  limited  period.^ 


1  Smith  V,  Uzzell,  61  Tex.  220. 

2  Estate  of  Crogan,  93  Cal.  370; 
Hen-old  v.  Keen.  58  Cal.  443 ;  distin- 
guishing between  Estate  of  Headen, 
53  Cal.  295,  and  Rich  v.  Tubbs,  41 
Cal.  34;  Estate  of  Delaney.  37  Cal. 
176 ;  Taylor  v.  Hargous.  4  Cal.  268. 

»  Cal.  Civ.  Code  of  Proc,  §  1474. 

*  id,  S  1468. 

5  Estate  of  Croghan,  92  Cal.  370 ; 
28  P.  570.  McFarlaud,  J. :  "  This  is 
an  appeal  by  certain  brothers  and 
sisters  and  children  of  deceased 
brothers  and  sisters  of  the  deceased 
from  an  order  setting  aside  abso- 
lutely to  the  surviving  wife  a  certain 
homestead.  There  is  no  attack  made 
on  tlie  general  validity  of  the  home- 
stead in  question.  It  was  the  family 
residence,  was  not  of  greater  value 
than  $5,000,  a  proper  declaration  had 
been  made  and  recorded,  and  it  was 
in  all  respects  in  law  a  valid  home- 
stead. But  the  contention  of  appel- 
lants is  that  it  should  have  been  set 
apart  to  the  widow  only  for  a  lim- 
ited period,  after  which  it  should  go, 
by  operation  of  law.  to  the  appellants 
as  heirs.  The  facts  upon  which  this 
contention  arises  are  these:  (1)  The 


said  homestead  was  the  separate 
property  of  the  deceased ;  and  (2)  the 
declaration  of  homestead  was  made 
by  the  deceased  himself.  Upon  -these 
facts  we  are  clear  that  the  home- 
stead vested  absolutely  in  the  widow 
as  survivor,  and  that  the  order  ap- 
pealed from  was  right.  It  is  impos- 
sible for  a  state  of  facts  to  be  more 
completely  covered  by  a  statutory 
provision  than  are  the  facts  in  this 
case  covered  by  section  1474  of  the 
Code  of  Civil  Procedure.  That  sec- 
tion provides  as  follows :  '  If  the 
homestead  selected  by  the  husband 
and  wife,  or  either  of  them,  during 
their  coverture,  and  recorded  while 
both  were  living,  was  selected  from 
the  community  propert}',  or  from  the 
separate  property  of  the  person  se- 
lecting or  joining  in  (he  selection  of 
the  same,  it  vests,  on  the  death  of  the 
husband  or  wife,  absolutely  in  the 
survivor.  If  the  homestead  was  se- 
lected from  the  separate  property  of 
either  the  husband  or  the  wife,  with- 
out his  or  her  consent,  it  vests,  on  the 
death  of  the  person  from  who.^e 
property  it  was  selected,  in  his  or  her 
heirs,  subject  to  the  power   of  the 


602 


EIGHTS    OF   THE    SUKVIVING    SPOUSE. 


As  the  code  vests  the  homestead  absolutely  in  the  survivor, 
he  or  she  takes  by  descent:  so  there  is  no  necessity  for  liaving 
the  property  set  apart  by  tlie  probate  court.'  "VVhctlier  the 
title  vests  absolutely  or  for  life,  the  conditions  niav  be  changed 
by  the  death  of  husband  or  wife.  As  it  was  said  under  a  stat- 
ute different  from  that  above  noticed:  "  During  the  life  of  the 
owner  of  the  fee,  the  exempt  character  of  the  property  was 
to  depend  upon  the  occupancy  as  a  homestead.  But,  upon  his 
or  her  death,  a  new  title  is  created  which  vests  in  the  survivor 
for  life,  unconditionally."  ^ 

A  statute  provides  that  a  homestead  shall  descend  to  the 
children  of  a  lirst  marriage  if  there  are  none  by  a  second, 
when  the  surviving  spouse  owns  a  place  equal  to  the  home- 
stead in  value.  The  term  "  children "  was  construed  to  ex- 
clude grandchildren  who  had  been  dependents  of  the  dece- 
dent and  members  of  the  family.  As  against  them,  the  sec- 
ond wife  in  her  widowhood  could  claim  the  homestead  while 
owning  an  equally  valuable  real  property.^ 

Widows  have  been  allowed  life-estate  homesteads  when  the 


superior  court  to  assign  it,  for  a  lim- 
ited period,  to  the  family  of  the  de- 
ceased.' The  contention  is  that  sec- 
tion 1265  of  the  Civil  Code  and 
section  1468  of  the  Code  of  Civil 
Procedure  are  in  conflict  vv'ith  said  sec- 
tion 1474 ;  and  a  good  deal  of  reason- 
ing is  indulged  in  by  counsel  to  show 
what  the  rule  is  when  two  different 
sectionsof  the  codes  are  contradictory, 
and  irreconcilably  conflicting.  But 
such  is  not  the  case  here.  The  clear 
and  explicit  language  of  section  1474 
deals  in  detail  with  the  very  identi- 
cal case  of  a  homestead  on  separate 
property,  created  by  the  owner  of 
such  property.  The  legislative  mind, 
when  enacting  it,  was  directed  spe- 
cially to  that  particular  kind  of 
homestead ;  and  its  intent,  thus  di- 
rectly and  clearly  expressed,  is  not 
to  be  taken  as  changed  by  other  sec- 
tions which  use  general  language, 
and  in  which  there  is  no  direct  ref- 
erence made  to  a  homestead  carved 


out  of  separate  property  by  the  will 
of  its  owner.  All  the  sections  cited, 
when  read  together,  clearly  mean 
that  when  a  homestead  has  been  se- 
lected by  one  spouse  out  of  the  sepa- 
rate property  of  the  other  without 
the  consent  of  the  latter,  then,  upon 
the  death  of  the  one  from  whose 
property  it  was  selected,  it  vests  in 
his  or  her  heirs,  subject  to  the  power 
of  the  court  to  assign  it  for  a  limited 
period  to  the  family  of  the  decedent ; 
but  when  the  selection  has  been 
'from  the  separate  property  of  the 
person  selectmg  or  joining  in  the 
selection  of  the  same,'  then  it  goes 
absolutely  to  the  survivor.  The  cases 
cited  by  appellant  do  not  establish 
any  other  doctrine.     Order  affirmed." 

•Baker  v.  Brickell,  87  Cal.  329; 
Herrold'v.  Reen,  58  Cal.  445-7. 

2Durland  v.  Seiler,  27  Neb.  33; 
Neb.  Com.  Stat,  ch.  36,  §  17. 

3  Peeler  v.  Peeler  (Miss.),  8  So.  392; 
Miss.  Code,  1880,  §  1277. 


SEPARATE    PROPERTY.  603 

estates  of  the  deceased  husbands  wore  solvent,'  while  they 
liad  absoKite  title  in  fee  when  tlie  estates  were  insolvent.^ 
When  the  estates  were  solvent,  there  was  distribution  amonjr 
the  heirs  on  tiie  expiration  of  the  exemption  ])cri(Kl ;  when 
not,  there  was  nothing  to  be  distriljuted  auion^-  them.  If  the 
homestead  has  been  abandoned,  distribution  takes  place  at 
once ;  if  not,  half  of  the  community  property  goes  to  the  heirs 
of  the  deceased,  and  half  to  the  survivor  of  the  community  as 
in  the  civil  law,*  while  all  of  the  separate  property  of  a  solvent 
decedent  is  distributable  upon  termination  of  the  exemption 
period  of  suspension  and  protection.^  The  homestead  of  a  de- 
cedent is  so  far  removed  from  his  general  estate  as  to  be 
usually  excepted  from  probate  administration."' 

Where  the  surviving  wife  takes  an  absolute,  fee-simple  title 
of  the  homestead  held  by  her  late  husband,"  her  heirs  inherit 
it  from  her,  and  her  husband's  heirs  are  excluded.^  If  the 
homestead  was  carved  from  her  separate  property,  and  en- 
joyed b}^  the  family  during  her  life,  it  does  not  retain  its  ex- 
empt character  as  the  homestead  of  the  husband  and  children 
after  her  death.*  The  fact  of  the  title  being  in  her  does  not 
prevent  the  husband  from  having  homestead  in  it  while  she  is 
living,'^  and  to  estate  by  curtesy,  for  life,  after  her  death."* 
Property  received  in  exchange  for  a  homestead  belonging  to 
the  wife  is  her  separate  estate  and  is  not  liable  for  her  hus- 

1  Singletary  v.  Hill,  43  Tex.  590.  "Skouten  v.  Wood,  57  Mo.  380,  ren- 

-  Hoffman  v.  Neuhaus,  30  Tex.  633 ;  dered  before  the  amendment 

Green  v.  Crow.  17  Tex.  180.  SKeyte  v.  Peery,  25  Mo.  App.  394. 

3  Bell  V.  Schwarz,  37  Tex.  574  ;  Sos-  9  Kendall  v.  Powers,  96  Mo.  143. 

saman  V.  Powell,  21  Tex.  665  ;  Walker  i«76.;   Moore  v.   Ivers,   83   Mo.  29; 

V.  Young,  37   Tex.  519;  Hartman  v.  Stephens  v.  Hume,  25  Mo.  349;  Kyte 

Thomas,  37  Tex.  90 ;  Magee  v.  Rice,  v.  Peery.  25  Mo.  App.  394 ;  Reaume 

37  Tex.  483 ;  Pryor  v.  Stone,  19  Tex.  v.  Chambers,  22  Mo.  36 ;  Alexander 

374.     Compare  Wright   v.   Hays,  34  v.   Warrance,    17    Mo.   228.      Under 

Tex.  260.  Wagner's  Stat   (Mo.),  698.  §  5,  the 

*  Brewer  v.  Wall,  23  Tex.  585.  homestead   was   absolutely  exempt, 

5  Estate  of  James,  23  Cal.  416 ;  Es-  not  being  liable  for  the  debts  of  the 

tate  of  Tompkins,  12  Cal.  114;  Carter  husband  and  father,  even  after  the 

V.  Randolph,  47  Tex.  379;  Sossaman  death  of  his  widow  and  the  ending 

V.  Powell,  21  Tex.  665.  of  his  children's  minorit}'.    French  v. 

« Revised   Stat  of  Missouri  (1879),  Strattun,  79  Mo.  560;  Canole  v.  Hurt, 

§  2693.     Amended  in  1889,  g  5439.  78  Mo.  649.     See  Davis  v.  Land,  88 

Mo.  436. 


604  EIGHTS    OF    THE    SURVIVING    SPOUSE. 

band's  debts;  nor  is  it  liable  for  community  debts.^  There 
may  be  an  exception,  in  case  the  wife  purposely  allowed  cred 
itors  to  be  deceived  and  led  to  trust  the  husband  in  the  be- 
lief that  the  projierty  was  his.  On  this  subject  it  is  said : 
'' Honesty  and  fair  dealing  require,  where  the  wife  permits 
her  husband  to  use  her  money  or  property  as  his  own  and  to 
incur  obligations  upon  the  faith  that  the  property  belongs  to 
him,  that,  as  against  creditors,  their  rights  are  superior  to 
hers."  In  other  words,  under  such  circumstances,  the  hus- 
band's obligations  bind  the  wife.-  But,  even  w^hen  the  wife 
knew  the  husband  was  making  debts  on  credit  gained  by 
means  of  her  money,  only  the  excess  above  her  homestead 
was  held  liable,  though  that  homestead  had  been  paid  for 
partly  hj  money  borrowed  by  the  husband.* 

That  the  homestead  was  bought  with  the  wife's  money  and 
was  her  se})arate  property  which  her  children  inherit  must 
be  clearl}'^  established  by  evidence  before  a  second  wife  can  be 
denied  homestead  therein.* 

"If  the  owner  of  a  homestead  dies  leaving  a  widow,  but  no 
children,  and  said  widow  has  no  separate  homestead  in  her 
own  right,  the  same  shall  be  exempt,  and  the  rents  and  profits 
thereof  shall  vest  in  her  during  her  natural  life.  If  the  owner 
leaves  children,  one  or  more,  said  child  or  children  shall  share 
with  said  widow,  .  .  each  child's  rights  to  cease  at  twenty- 
one  years  of  age,  .  .  and  in  case  of  the  death  of  the  widow, 
all  of  said  homestead  shall  be  vested  in  the  minor  children  of 
the  testator  or  intestate."  ^  In  construing  this  constitutional 
provision,  it  was  said  that  no  provision  is  made  for  the  surviv- 
ing husband  as  to  the  homestead  of  his  deceased  wife.  Her 
minor  children  succeed  during  their  minority.  The  husband's 
'•right  to  curtesy  must  yield  to  the  superior  right  guarantied 
to  the  minor  children  by  the  constitution."  The  court,  in  ex- 
position of  the  section  above  cited  and  quoted,  said  of  the 
minor  children :  "  We  think  that  this  section  was  never  in- 
tended to  make  their  right  to  occupy  the  homestead  depend 

1  Blum  V.  Light,  81  Tex.  414.  ^Swartz  v.  McClelland,  supra. 

2S\vartz   V.    McClelland   (Neb.),  48        <  King  v.  Gllleland,  60  Tex.  271. 
N.  W.  461 ;  Early  v.  Wilson  (Neb.),        5  Const  of  Ark.  (1874),  art.  9,  g  6. 
48  N.  W.  148;  Roy  v.  McPherson,  11 
Neb.  197. 


widower's  Rionrs  in  general.  G05 

on  the  owner  leaving  a  widow  at  the  time  of  liis  death ;  and 
that  the  minor  children  of  a  deceased  owner  are  solely  entitled 
to  the  homestead,  during  their  minority,  in  all  cases  where 
there  is  no  w^idow  surviviner."  * 

§  6.  Widower's  Rights  in  General. 

"Which  is  superior  —  the  right  of  tenancy  by  curtesy  con- 
veyed to  a  third  person,  or  the  right  of  homestead  in  minor 
children? 

The  surviving  husband's  life  estate  by  curtesy  is  qualified 
by  homestead  exemption  and  must  yield  Avhen  there  is  con- 
flict. The  legislative  purpose,  in  making  the  exemption,  is  to 
protect  the  wife  and  children  rather  than  the  husband  and 
father ;  to  secure  a  home  for  them  of  which  he  cannot  deprive 
them.  In  only  two  ways  can  they  be  deprived  of  it ;  aban- 
donment or  release  by  both  husband  and  wife.  The  home- 
stead right,  and  that  of  dower,  are  equally  sacred :  so  treated 
from  considerations  of  public  policy.  From  these  premises  it 
has  been  inferred  that  the  provision  continuing  the  homestead 
right  to  the  family  after  the  death  oi  its  head,  through  the 
minority  of  the  children,  is  paramount  to  that  of  tenancy  by 
curtesy  conveyed  by  the  husband  to  a  stranger,  when  asserted 
by  the  latter  against  such  right  of  homestead.  In  other  words, 
a  husband's  life  estate  in  the  separate  property  of  a  first  wife, 
sold  to  a  third  person,  is  to  be  postponed  to  the  home  right 
of  a  second  wife  and  minor  children  in  the  same  property.^ 

Homestead  was  accorded  to  the  head  of  a  family  consisting 
of  a  husband,  wife  and  children.  There  were  two  adult 
daughters  and  two  minor  children.  The  application  wa-; 
treated  as  having  been  for  the  benefit  of  them  all  —  the  adults 

1  Thompson  V.King  (Ark.),  14  S.  W,  cluldren.     Wolf  v.  Wolf,  67  III.  55. 

925.  This  course  has  heen  rendered  illegal 

2Loeb  V.   McMahon,    89   111.    487;  by  a  statute  subsequently  passed.  Act 

Hoskius  V.  Litchfield,  31  111.  143.   See  of  Illinois,  1871-2,  p.  478:  Acts  1877, 

Fight  V.  Holt.  80  111.  84 ;  Sontag  v.  ch.  52,  ^  1.     See  Eggleston  v.  Eggles- 

Schmisseur,  76  111.  541 ;  Wolf  v.  Wolf,  ton,  72  111.  24 ;  Turner  t.  Bennett,  70 

67  111.   55.     Formerly,  in   Illinois,  a  III.   263;  Fight  v.   Holt,  80  111.   84: 

widower  who  succeeded  his  deceased  Sontag  v.   Schmisseur,  76  111.   541; 

wife  in  her  estate  by  curtesy  could  Deltzer  v.  Scheuster,  37  III.  301.     See 

eject  an  heir  occupant,  though   he  the  present  law.    Starr  &  Curtis'  An. 

had  previously  deserted  his  wife  and  Stat,  of  111.,  pp.  1097-1111. 


606  EIGHTS    OF    THE    SURVIVING    SPOUSE. 

being  dependent.  "When  the  wife  had  died  and  children 
grown  and  married  and  gone,  the  husband  was  allowed  still 
to  hold  the  homestead  in  behalf  of  the  adult  daughter  bene- 
ficiaries. Upon  remarriage  he  was  denied  a  second  homestead 
on  the  ground  that  the  first  was  still  intact.^  On  the  same 
principle,  an  unmarried  man  who  supports  his  raotlier  and 
sisters  may  have  homestead  —  they  constituting  his  family.'^ 
The  head  of  a  family  consisting  of  his  wife  and  a  dependent 
grandchild  under  age  was  recognized  as  entitled  to  his  home- 
stead, after  his  wife's  death,  during  the  minority  of  the  grand- 
child.' In  some  states,  if  the  wife  outlive  the  husband  she  is 
entitled  to  homestead ;  but,  if  he  survive,  he  is  not  so  entitled 
unless  he  have  children.*  Where  there  are  children,  the  sur- 
viving husband  holds  for  them;  or,  the  surviving  wife  holds 
for  them  and  herself.^  Thus  the  rights  of  a  widower  are  not 
alwaj'^s  the  same  as  those  of  a  widow;  they  do  not  depend  on 
the  same  conditions.^  His  rights,  by  statute,  may  be  as 
sacred  as  hers ;  the  following  case  is  an  illustration.  A  tes- 
tatrix willed  the  homestead,  her  only  property  (which  she 
and  her  husband  had  long  occupied),  to  be  sold  and  the  pro- 
ceeds distributed  to  the  legatees  named  in  her  will.  The  sur- 
viving husband  was  entitled  to  it,  nevertheless,  as  his  home- 
stead for  the  period  limited  by  law.  This  was  accorded  him, 
notwithstanding  the  fact  that  the  executor  had  negotiated  a 
sale  of  the  property  prior  to  the  survivor's  application  for 
homestead.'^  None  had  been  selected  and  recorded  during  her 
life,  but  it  was  the  duty  of  the  court  to  set  apart  a  home- 
stead from  her  estate  for  the  survivor  out  of  her  property 
when  there  was  no  community  property,*  or  from  any  real 
property  suitable  for  it ;  ^  and  to  do  this  for  the  husband  alone, 
when  there  were  no  children.'''    During  the  wife's  life-time,  the 

1  Torrance  v.  Boyd.  63  Ga.  22.  5  Estate  of   Wixom,  35   Cal.   320 ; 

2  Marsh  v.  Lazenby,  41  Ga,  154.  Higgins  v.  Higgins,  46  Cal.  259;  Rich 

3  Hall   V.   Matthews,   68    Ga.   490 ;     v.  Tubbs,  41  Cal.  34. 

See  Hodo  v.   Johnson,  40  Ga.   439;  6  Allen  v.  Russell,  39  O.  St.  336. 

Roff  V.  Johnson,  40  Ga.  555 ;    Van  7  Lahiff's  Estate,  86  Cal.  151. 

Dyke  v.  Kilgo,  54  Ga.  551.  sQal.  Code  Civil  Proc,  §  1465. 

i  Revalk   v.   Kraemer,   8  Cal.   71 ;  9  In  re  Sharp,  78  Cal.  483. 

Gee  V.  Moore,  14  Cal.  476 ;  Bowman  lo  Code  Civ.  Proc,  §  1468. 
V.   Norton,   16    Cal.   217;  Estate    of 
Busse,  35  Cal.  310. 


■widow's  kioiits  as  to  conveyances.  got 

husband  could  not  have  had  homestead  carved  from  her  sep- 
arate property  without  her  assent/  but  afterwards  the  court 
could  designate  it.^ 

§  7.  Widow's  Rights  as  to  Conveyances,  etc. 

The  reservation  of  life  estate  in  a  husband's  land  deeded  by 
both  him  and  his  Avife  to  a  purchaser  was  treated  as  a  convey- 
ance of  such  estate  to  the  wife  so  that  she,  as  survivor,  was 
entitled  to  it  at  her  husband's  death.''  V>y  operation  of  law 
the  husband's  interest  in  the  reservation  did  not  descend  to 
his  heirs  but  ceased  at  his  demise.  Her  right  to  it  then  did 
not  ])reclude  that  of  dower.'*  If  there  is  no  reservation,  the 
sale  of  the  property  by  husband  and  wife  (or  by  either,  if 
either  has  the  sole  right  to  sell)  conveys  the  homestead.'^ 

It  has  been  held  that  a  quitclaim  deed  of  a  widow  is  no 
impediment  to  the  granting  of  homestead  to  her  out  of  the 
very  land  she  has  conveyed.^  She  is  not  estopped  by  her 
deed  from  applying  to  have  homestead  assigned  her  in  the 
same  realty  she  has  conveyed,  it  is  said.  She  may  have  the 
price  to  keep  forever,  and  the  land  to  keep  for  life.  It  would 
seem  that  the  character  of  the  deed  is  not  to  blame  for  this; 
the  estoppel  by  it  is  as  effective  ordinarily  as  that  by  war- 
ranty deed,  as  counsel  showed  in  this  case."  They  supported 
by  authority  the  well  known  doctrine  that  the  right  of  prop- 
erty and  of  its  exclusive  possession  passes  by  a  quitclaim 
deed.^  The  court  said  that  the  right  to  a  probate  homestead 
is  not  the  subject  of  sale  and  is  not  an  estate  either  in  law  or 
equity.  This  is  doubtless  true ;  yet  there  must  be  estate  upon 
which  to  hitch  the  right.  The  title  of  the  estate  of  a  deced- 
ent may  be  in  his  heirs,  yet  his  widow's  homestead  may  be 
carved  upon  it.     It  is  not  necessar}'^  that  she  should  have  i\uy 

1  Civ.  Code,  g  1239.  6  Estate  of  Moore,  57  Cal.  437. 

2  Code  Civ.  Proc,  ^§  1465,  1468.  ^  Sullivan  v.  Davis,  4  Cal.  291 ;  Cai- 
3McRoberts  v.  Copeland,  85  Tenn.     pentier  v.  Williamson,  25    Cal.  154; 

211.  Downer  v.  Smith,  24  Cal.  114 ;  Crane 

*lb.  V.  Salmon,  41  Cal.  63,  and  others. 

5  Nichol  V.  County  of  Davidson,  8  ^Gazley  v.   Price,   16   Johns.  267; 

Lea,  389 ;  Kincaid  v.   Burem,  9  Lea,  Ketchum  v.  Evertson,  18  Johns  359 ; 

553;  Bilbrey  v.  Poston,  4  Bax.  232;  Potter  v.  Tuttle,  22  Ct.  512;  Kyle  v. 

Daly  v,  Willis,  5  Lea,  100 ;  Gibbs  v.  Kaveuagh,  103  Mass.  356. 

P  It  ten,  2  Lea,  183. 


608  RIGHTS  or  the  surviving  spouse. 

estate  in  tlio  land,  in  the  sense  of  title,  in  order  to  the  probate 
assignment  of  her  life  liome  upon  it.  But,  after  these  con- 
cessions, may  it  not  be  reasonably  asked:  Can  one  have  home- 
stead laid  off  to  him  upon  land  after  he  has  conveyed  it  to  a 
stranger?  Or  can  a  widow  have  her  life-home  assigned  her 
by  a  court  upon  land  which  she  has  owned  and  conveyed?  In 
justice  to  the  court  rendering  the  decision,  the  following  ex- 
tract from  the  opinion  is  given:  "  The  deed  of  Mrs.  Moore  is 
silent  upon  the  subject  of  homestead :  whatever  its  effect  as  a 
conveyance,  it  was  no  more  than  to  convey  the  interest  in  the 
property  of  the  deceased,  which  she  received  upon  his  death, 
by  succession.  A  homestead  right,  or  a  right  to  have  a  home- 
stead, is  not  a  right  which  vests  under  the  law  by  succession. 
It  is  a  right  bestowed  by  the  beneficence  of  the  law  of  this 
state  for  the  benefit  of  the  family."  ^ 

Husband  and  wife  having  conveyed  land,  and  having  subse- 
quently lived  upon  it  as  tenants  till  his  death,  she  cannot  then 
take  a  reconveyance  from  their  grantee  so  as  to  set  up  home- 
stead to  the  prejudice  of  creditors  of  the  deceased  who  have 
recovered  judgment  against  them  prior  to  the  reconveyance.'^ 

§  8,  Kelative  to  Insurance  on  Homesteads. 

Did  the  interest  in  a  policy  of  insurance  devolve  on  the  sur- 
vivor, the  owner  of  the  hoiiiestead  estate,  when  the  home 
building  was  insured,  and  when  loss  followed  the  death  of  the 
insured  —  the  insurance  being  to  him  and  his  legal  represent- 
atives? "Would  the  widow  and  minor  children  be  entitled  to 
the  damages  paid  on  the  policy  for  the  loss,  and  be  entitled 
to  its  interest  —  she  for  life  and  they  during  minority  ?  This 
question  has  been  affirmatively  answered  in  an  able  decision.^ 

1  Estate  of  Moore,  supra,  p.  443.    A  Reynegan  v.  Revalk,  8  Cal.  76 ;  Cook 

surviving  wife,  sued  as  executrix  of  v.    Klink,    8    Cal.    347 ;    Blakey    v. 

lier  husband's  estate,  to  foreclose  a  Newby,  6   Munf.   64.      But,   though 

mortgage  given  by  him,  is  not  af-  sued  as  executrix,  if  she  voluntarily 

fected  in  her  right  of  homestead  in  make  herself  a  party  personally,  she 

the  property   proceeded  against,  by  could  be  bound.    Dissenting  opinion 

the  judgment  of   foreclosure,  since  in  case  first  cited  above.     1  Herman 

she  was  not  personally  a  party  to  the  on  Estoppel,  §  94 ;  Corcoran  v.  Canal 

action.     Building  Ass'n  v.  Chalmers,  Co.,  94  U.  S.  741. 
75  Cal.  332 ;  Stoops  v.  Woods,  45  Cal.        2  Berry  v.  Dobson,  68  Miss.  483. 
439;  Revalk  v.  Kraemer,  8  Cal.  65^        ^Culbertson  v.  Cox,  29  Minn.  309. 
75;    S.    C,   68   Am.    Dec.   308;    Van 


KELATIVK    TO    INSUKAXCE    ON    HOMESTEADS.  000 

The  doctrine  is  that  the  proceeds  of  the  policy  do  not  go  to 
the  administrator  of  the  deceased  as  assets  of  his  estate,  re- 
sulting from  a  merely  personal  contract,  but  to  the  widow 
and  minor  children  who  are  beneficially  interested  in  the 
property.  The  personal  representatives  of  the  deceased  who 
insured  can  recover  on  the  policy  as  their  trustee.^  For  the 
contract  of  insurance,  though  personal  in  some  respects,  has 
such  reference  to  property  that  the  party  to  it  who  is  to  be 
remunerated  in  case  of  loss  must  continue  to  be  the  owner  of 
the  insured  property  in  order  to  retain  his  right  under  tlic 
contract.  When,  upon  his  death,  his  widow  and  minor  chil- 
dren succeed  to  his  insured  homestead,  the  property  right  is 
so  far  lodged  in  them  that  they  may  claim  the  insurance 
money  (in  case  of  loss  by  fire),  instead  of  the  administrator 
who  would  have  the  only  rightful  claim  were  the  insurance 
contract  a  purely  personal  one. 

Where  no  question  of  homestead  right  intervenes,  and  the 
estate  of  the  insured  is  insolvent,  it  well  may  be  that  the  ad- 
ministrator has  the  right  to  the  insurance  money  rather  than 
the  heir,  because  it  must  go  to  pay  debts.^ 

Homestead  aside,  it  has  been  thought  that  insurance,  money 
on  a  fire  policy  belongs  to  the  personal  estate  of  the  deceased 
insurer,  after  loss ;  that  it  has  nothing  of  the  nature  of  realty, 
or  of  a  substitute  for  the  consumed  property,  and  therefore 
does  not  go  directly  to  the  heir  or  devisee.*  Much  depends 
upon  the  terms  of  the  contract  —  whether  the  loss  is  to  be 
made  up  to  the  insured,  "his  executors,  administrators  or  as- 
signs ; "  or  to  him,  "  his  heirs  or  assigns." 

That  the  contract  of  insurance  is  merely  a  personal  one,  not 
running  with  the  land,  has  been  held  repeatedly.^  But  home- 
stead laws  conflict  with  many  ordinary  rules  of  jurisprudence. 
The  protection  of  homes  —  the  security  of  shelter  for  widows 

^  lb.;  Herkimer  v.   Rice,  27  N.  Y.  M.  &  W.  10 ;  Carpenter  v.  Providence 

163 ;  Wyman  v.  Wyman,  26  N.  Y.  Ins.  Co.,  16  Pet  495 ;  Columbia  lus. 

353.  Co.  V.  Lawrence,  10  Pet.  507 ;  Mcln- 

2  Wyman  v,  Prosser,  36  Barb.  368.  tire  v.   Plaisted,  68  Me.  363 ;   Cum- 

3  Mildmay  v.  Folgham,  3  Ves.  Jr.  mings  v.  Cheshire  Ins.  Co.,  55  N.  H. 
471.  457 ;    Carroll   v.  Boston    Ins.    Co.,  8 

*  Lynch  v.  Dalzell,  4  Brown  (Par.  Mass.  515  ;  Etna  Fire  Ins.  Co.,  v.  Tyler, 

Cas.),  431 ;  Saddlers'  Co.  v.    Badcock,  16  Wend.    386 ;   Newman  v.    Home 

2  Atkyns,  554;  Powles  v.    Inues.  11  Ins.  Co.,  20  Minn.  422. 
39 


t)10  RIGHTS    OF    THK    SURVIVING    SPOUSE. 

and  orphans  —  would  be  greatly  imperiled  if  the  money,  stand- 
ing in  lieu  of  a  family  home  destroyed  by  fire,  could  not  go  to 
the  rebuilding  of  it  for  their  benefit.  The  spirit  of  homestead 
legislation  favors  the  saving  of  such  money  for  them  rather 
than  the  passing  of  it  to  the  administrator  to  be  paid  over  to 
creditors  who  had  no  claim  on  the  exempt  property  destroyed. 
A  householder  had  his  homestead  dwelling-house  insured 
against  fire.  The  contract  is  assumed  to  have  been  to  him, 
his  executors,  administrators  and  assigns.  After  his  death, 
and  while  his  widow  and  children  occupied  the  insured  dwell- 
ing, it  was  burned.  A  contest  arose  between  her  and  the  ad- 
ministrator for  the  money  paid  into  court  by  the  insurance 
company.  She  won :  the  court  holding  that  "  the  proceeds  of 
the  policy  partook  of  the  character  of  real  estate,"  and  that 
she  was  entitled  to  the  same  amount  of  interest  in  them  that 
that  she  had  had  in  the  property  destroyed ;  that  is,  to  the 
usufruct  for  life.^ 

1  Culbertson  v.  Cox,  supra. 


CHAPTER  XX. 


THE  WIDOW'S  HOMESTEAD. 


i5  1.  Characteristics. 

8.  Ante-nuptial  Contract 
8.  Dower  and  Homestead- 

4.  Dower  or  Homestead. 

5.  The  Widow's  Occupancy. 


Relative  to  Heirs. 
Relative  to  Alienation. 
Money  or  Realty    in    Lieu 

Homestead. 
In  General. 


of 


§  1.  Characteristics. 

The  term  homestead  means  something  different  from  the 
word  as  hereinbefore  defined,  when  it  is  used  to  express  the 
widow's  portion  of  her  deceased  husband's  estate,  distin- 
guished from  her  dower.  It  is  not  necessarily  a  dwelling- 
house,  not  always  dependent  upon  occupancy,  not  invariably 
subject  to  restraint  of  alienation.  It  is  allotted  by  the  pro- 
bate court,  or  such  court  as  has  jurisdiction  to  allot  it,  under 
the  statute  of  any  state  so  directing,  and  therefore  does  not 
need  to  have  been  dedicated  or  set  apart  before.  It  is  not 
always  consequent  upon  her  husband's  having  had  the  ex- 
emption right,  nor  need  the  court  confine  itself  to  property 
previously  set  apart  to  him,  or  by  him,  when  it  is  assigning 
the  widow's  homestead,  under  the  law  of  several  states. 

There  is  no  reason  why  a  widow,  who  is  the  head  of  a 
family,  may  not  dedicate  a  homestead  upon  her  own  real 
estate  occupied  by  her  as  a  home,  when  she  has  derived  none 
from  her  husband.  She  would  be  entitled  to  do  this  under 
any  homestead  law,  but  property  thus  selected  and  dedicated 
by  her  would  not  constitute  what  is  understood  as  ''  the 
widow's  homestead."  It  would  be  like  any  other,  subject  to 
the  same  rules,  bearing  no  analogy  to  dower,  coming  under 
the  common  definition.  The  widow,  in  establishing  such 
homestead,  would  do  so  as  the  head  of  a  family.  The  stat- 
utes do  not  require  male  headship.  It  has  been  held  that 
the  wife  of  an  abscondino^  husband  is  the  head  of  the  familv.' 


1  State  V.  Wilson,  31  Neb.  464,  Neb.  Co;le,  §  521. 


612  TiiF-   widow's   IIOMESTEAO. 

The  widow's  homestead,  under  the  statutes  of  tlio  different 
states,  varies  mucli  in  character.  It  may  be  com|)atit)le  with 
dower  or  incompatible;  it  may  be  absolute  or  conditional;  if 
conditional,  it  may  be  made  dependent  on  occupancy  or 
widowhood.  It  is,  in  any  particular  state,  just  what  the  stat- 
ute there  makes  it:  so  no  universally  applicable  definition  or 
description  of  it  can  be  given.  It  presents  a  much  greater 
variety  of  form  than  the  ordinary  homestead  exhibits :  so, 
though  the  latter  is  in  each  state  what  the  statute  there  makes 
it,  it  is  more  easily  defined. 

The  homestead  of  a  decedent,  descending  to  his  widow  and 
children,  is  not  an  asset  of  his  estate  to  be  administered ;  but 
there  is  often  occasion  for  the  action  of  the  probate  courts. 

§  2.  Aiite-imptial  Contract. 

The  effect  of  a  contract  betw^een  parties  in  view  of  matri- 
mony, by  which  the  wife  waives  her  prospective  homestead 
right,  when  solely  dependent  upon  statute,  necessarily  differs 
as  the  statutes  differ.  On  general  principles,  one  cannot  cut 
himself  off  by  contract  from  the  right  to  assert  legal  rights 
subsequently  arising.  Decisions  based  on  statutory  provis- 
ions and  their  construction  are  severally  pro  or  con:  so  an  ex- 
ample of  those  favoring  the  waiver,  and  one  or  two  of  those 
denying  it,  may  suffice. 

Under  a  statute  which  gave  homestead  to  the  widow  of  a 
beneficiary  in  common  with  his  minor  children  during  their 
minority,  and  precluded  partition  while  they  were  minors 
unless  she  should  remarry,  and  which  gave  half  to  her  and 
half  to  them  on  partition,^  it  was  held  that  the  widow  had  no 
claim  to  homestead  because  she  had  signed  it  away  by  her 
ante-nuptial  contract.  Nothing  expressly  so  holding  was 
found  in  the  statute,  but  such  was  the  inference  drawn  by  the 
court.  Admitting  that  the  statute  was  to  preserve  a  home 
for  the  family  against  the  claims  of  creditors,  the  court  said 
that,  when  the  widow  remarries,  the  children  reach  their  ma- 
jority, or  the  homestead  is  abandoned,  the  premises  may  be 
divided  precisely  as  other  property.  Then  (of  the  claimant 
for  petition  in  the  case  under  consideration),  the  court  said 
that,  in  a  contract  fairly  made  and  for  a  valuable  considera- 

1  Comp.  Laws  of  1879,  Kas.,  ch,  33.  S  5.     See  Gen.  Stat  (1889),  g§  2593-7. 


I 


ANTE-NUPTIAL    CONTKACT.  613 

tion,  she  had  "  disclaimed  any  share  she  mif^ht  possibly  have  in 
the  future  in  the  homestead,  and  agi'eed  to  take  in  lieu  thereof 
the  property  stipulated  for  in  the  contract.  This  contract 
was  made  in  prospect  of  marriage  and  as  a  condition  of  the 
same.  The  interests  and  rights  she  now  claims  arose  wholly 
because  of  the  marriage  so  contracted  under  those  conditions, 
and  she  obtained  them  subject  to  the  express  contract  she 
had  voluntarily  entered  into.  .  .  .  We  believe  the  rule 
laid  down  for  the  division  of  other  property  should  be  applied 
to  a  homestead  also  when  it  is  to  be  divided."  ^ 

This  decision  was  rendered  in  view  of  one  in  another  state 
holding  the  negative  position  ;  and  the  statutory  difference  be- 
tween the  two  states  was  pointed  out :  the  statute  above  cited 
terminating  the  widow's  right  upon  her  remarriage,  while  that 
of  the  other  state  made  it  dependent  upon  occupancy  only. 
Turning  to  the  case,  we  find  that  waiver  by  ante-nuptial  con- 
tract was  denied  as  to  homestead  while  it  was  upheld  as  to 
dower;  and  the  principal  reason  was  found  in  the  want  of 
statutory  provision  for  terminating  homestead  in  that  way. 
The  court  enumerates  the  methods  of  extinguishment  and  de- 
clares that  an'e-nuptial  renunciation  is  not  one.  Public  policy 
is  also  assigned  as  a  reason ;  and  it  is  doubtless  the  stronger.'^ 
This  reason  has  been  given  due  prominence  by  the  same  court, 
in  a  prior  case  cited  in  this,  to  support  the  doctrine  (still 
maintained)  that  homestead  cannot  be  waived  by  an  ante- 
nuptial agreement,  as  that  right  rests  on  public  policy,  while 
the  dower  right  does  not  and  may  therefore  be  waived  by 
such  contract.^  Suppose,  however,  the  homestead  right  of  the 
widow  is  as  strictly  personal  to  herself  as  her  dower  right; 
that  neither  minor  children's  benefit  nor  the  state's  interest 
in  the  preservation  of  homes  is  involved ;  that  she  takes  her 
homestead  portion  as  an  estate  as  she  does  her  dower  portion: 
what  reason  then  exists  for  differentiating  the  two  rights  with 
respect  to  the  validity  of  their  ante-nuptial  disposition  for 

iHafer  v.  Hafer,  36  Kas.  524.     See  » Phelps  v.  Plielps,  72  III.  545.     So 

same  title,  33  Kas.  449.  in  McGee  v.  McGee,  91  111.  548,  also 

2McMahill  V.  McMahill,  105II1.  596,  cited  by  the  court  in  the  McMahill 

on   the   Homestead   Act  in  force  in  Case.     Boyd   v.  Cudderback,   31   111, 

1873,   Stat.    111.,   ch.  53,  §  2.     Three  119;  Jordan  v.  Clark,  81  111.465. 
judges  dissented. 


614  THE  widow's  homestead. 

consideration  received  or  promised?  If,  sli-  'ii  of  connection 
with  minor  children,  and  with  the  state  as  an  interested  party, 
the  widow  pleads  (at  the  time  when  all  heirs  are  of  age)  that 
she,  having  taken  the  consideration,  may  now  repudiate  her 
marriage  contract  for  her  own  selfish  ends,  it  would  seem  that 
she  ought  to  be  held  to  the  rule  governing  her  waiver  of 
dower. 

The  position  that  only  the  methods  prescribed  for  the 
termination  of  the  homestead  right  must  be  followed  is  doubt- 
less right  in  itself,  and  has  been  repeatedly  asserted.^ 

When  the  law  points  out  the  method  or  methods  by  which 
an  acquired  homestead  may  be  abandoned,  forfeited,  relin- 
quished or  terminated,  it  does  not  have  reference  to  contracts 
preceding  the  acquisition:  so  the  waiver  in  an  ante-nuptial 
contract,  of  the  prospective  right  of  homestead  benefit  on  the 
part  of  a  party  about  to  be  married,  ought  not  to  be  classed 
with  those  methods.  The  nullity  of  it  is  not  deducible  from 
any  of  the  exemption  statutes  except  from  their  policy  and 
spirit;  and  these  accord  with  the  general  principle  that  legal 
rights  and  remedies  cannot  be  rendered  unavailing  by  stipula- 
tion to  forego  them  before  they  arise.  While  dower  and  some 
other  future  interests  may  be  given  up  for  a  consideration,  it 
does  not  follow  that  the  right  of  homestead  can  be  bartered 
away  in  advance.  The  state  is  an  interested  party,  and  its 
policy  ought  not  to  be  defeated  by  contract  between  other 
parties. 

§  3.  Dower  and  Homestead. 

The  compatibility  of  dower  and  homestead  is  recognized  in 
several  states.  By  the  statutes  and  statutor}^  construction  of 
some,  both  may  be  granted  on  the  same  land ;  of  others,  on 
different  lands:  that  is,  the  widow  may  have  her  homestead 
laid  off  to  her,  and  also  have  her  dower  assigned  on  other 
premises  of  the  estate.  If  dower  has  been  first  accorded  to 
her,  that  is  no  bar  to  the  allomont  of  homestead;  or  if 
homestead  has  been  assigned  to  her,  she  may  yet  claim  dower, 

1  Beavan  v.  Speed,  74  N.  C.  548;  pective  wife  agreed  to  accept  certain 

Abbott  V.  Cromartie,  72   N.  C.  292 ;  sums   in  full  for  "  dower "  and  for 

Kingman   v.    Higgins,   100  111.    319 ;  services   "  rendered,"   she  was  held 

Black  V.  Lusk,  69  111.  70.  By  an  ante-  concluded  as  to  homestead.     Ditson 

nuptial  contract  in  which  the  pros-  v.  Ditson  (la.),  52  N.  W.  203. 


DOWER   AND    HOMESTEAD.  615 

under  the  last  mentioned  policy.  Since  dower  is  for  the 
widow  only,  while  homestead  is  not  always  exclusively  for 
her,  but  usually  for  the  minor  children  too,  the  one  is  not  in- 
consistent with  the  other.^ 

On  the  death  of  a  husband,  the  allotment  of  homestead  to 
his  widow  involves  no  question  of  title.  It  is  merely  a  sepa- 
ration of  the  exempt  land  from  that  which  is  subject  to  ad- 
ministration.- It  does  not  raise  l>he  question  of  title  any  more 
than  does  the  laying  off  of  the  widow's  third.  But  her  right 
to  have  such  allotment  made  may  be  questioned,  so  that  her 
title  to  any  homestead  at  all,  or  to  any  in  the  particular  land 
in  which  she  claims  it,  may  be  disputed  by  either  heirs  or 
creditors.  The  legality  of  the  decedent's  title  is  not  involved 
in  the  separation  of  his  real  estate  into  the  part  to  be  adminis- 
tered by  the  executor  or  administrator,  and  the  part  exempt 
as  the  widow's  homestead. 

Where  the  right  to  dower  and  that  to  homestead  are  dis- 
tinct, a  widow  may  claim  and  receive  both  without  inconsist- 
ency. The  two  differ  in  several  respects.  Dower  is  for  life, 
while  homestead  may  endure  only  during  her  wndowhood. 
Dower  may  be  sold  to  anybody,  while  the  homestead  right  can 
be  alienated  to  no  one  but  the  owner  of  the  fee.  Were  both 
homestead  and  dower  to  be  laid  off  on  the  same  land,  and  the 
homestead  quantity  overlap  the  portion  carved  out  as  dower, 
the  excess  would  not  be  affected  in  character.  It  would  still 
remain  dedicated  to  the  support  of  the  widow  and  children.* 
Where,  in  addition  to  her  estate  of  homestead,  the  widow  is 
entitled  to  dower  out  of  her  husband's  entire  estate,*  if  the 
whole  is  not  sufficient  to  give  her  the  fuU  extent  of  the  home- 
stead allowed  by  law,  she  is  entitled  to  all  that  remains  after 
having  received  her  dower.^     But  by  taking  one-third  of  the 

1  McCuan  v.  Turrentine.  48  Ala.  70 ;  Wallace  v.  Harris,  32  Mich.  380 ; 
Jordan  v.  Strickland,  42  Ala.  315 ;  West  River  Bank  v.  Gale,  42  Vt.  27 ; 
Chisholm  v,  Chisholm,  41  Ala.  327.  Buxton  v.  Dearborn,  46  N.  H.  43; 
See  Hudson  v.  Stewart,  48  Ala.  206 ;  Perkins  v.  Quigley,  62  Mo.  498 ;  Bresee 
Thornton  v.  Thornton.  45  Ala.  274.  v.  Stiles.  22  Wis.   120;  Merriman  v. 

2  Coflfey  V.  Joseph,  74  Ala.  271.   See  Lacefield,  4  Heisk.  222. 
Cochran's  Adm.  v.   Sorrell,  74  Ala.  ^Cowdrey  v.  Cowdrey,  131  Mass. 
310.  186. 

3  Showers  v.  Robinson,  43  Mich.  •"*  Mercier  v.  Chace,  11  Allen,  194; 
502,  511;  Dei  v.  Habel,  41  Mich.  88;  Monk  v.  Capen,  5  Allen,  146. 


61(5  THE  widow's  homestead. 

income  of  the  whole  estate  instead  of  having  dower  laid  off, 
and  then  selling-  her  right  to  it,  she  was  held  to  have  waived 
her  homestead  right.'  However,  the  assignment  of  dower  to  a 
widow  consisting  of  specified  rooms  in  the  dwelling-house, 
parcels  of  land  and  rights  of  way  over  other  parts  of  the  house 
and  other  land,  was  held  not  to  render  her  a  tenant  in  common 
with  tlie  legal  heir  of  her  deceased  husband,  so  as  to  deprive 
her  of  homestead.-  If  the  law  gives  the  widow  a  designated 
sum  from  her  husband's  estate,  it  does  not  therefore  deprive 
her  of  dower.* 

The  wife's  alienation  and  the  widow's  are  held  subject  to 
different  rules.  While  the  latter  cannot  sell  her  homestead  as 
above  stated,  the  former  can  expressly  release  her  right  in  a 
mortgage  given  by  the  husband  on  their  homestead.'*  While 
the  widow  cannot  alienate,  she  can  abandon  her  individual 
rights  in  her  homestead  by  ceasing  to  occupy  it,  wherever  oc- 
cupancy is  essential  to  its  maintenance.  While  the  widow 
cannot  sell  her  personal  right  of  quarantine,  it  may  be  for- 
feited or  abandoned.  A  widow  conveyed  her  dower  interest 
and  removed  from  the  homestead.  It  was  held,  in  exposition 
of  the  governing  statute,  that  the  grantee  was  entitled  merely 
to  the  gains  and  profits  which  she  would  have  had  if  she  had 
left  the  homestead  without  conveying  her  dower  interest.^ 
To  this  reason,  another  has  been  added:  that  the  statute  giv- 
ing homestead  does  not  provide  that  it  shall  b6  in  the  place  of 

1  Bates  V.  Bates,  97  Mass.  392.  widow  has  been  allowed  dower  with- 

2Weller  v,  Weller.  131  Mass.  446,  out  contributing  to  the  payment  of  a 

on  Stat,  of  1855,  ch.  238.  mortgage   on  the  estate,  if  tlie  ad- 

3  The  Statute  of  Mass.  (1880),  ch.  211,  ministrator  redeems  the  j^roperty  by 

§  1,  allows  the  widow  of  an  intestate  applying  assets  of  the  estate  to  that 

$5,000  worth  of  real   estate  in  fee.  purpose.    Norris  v.  Morrison,  45  N.  H. 

This  is  not  in  lieu  of  dower.   Elliot  v.  498 ;  Norris  v.  Moulton,  34  N.  H.  392, 

Elliot,  137  Mass.  116.   The  assignment  399;  Woods  v.  Wallace,  30  N.  H.  384 ; 

of  dower  does  not  affect  the  estate  of  Hastings  v.   Stevens,   29  N.   H.  564 ; 

homestead,  in  Massachusetts.    Weller  Rossiter  v,  Cossit,  15  N.  H.  38 ;  Rob- 

V.   Weller,    131  Mass.   446 ;    Paul   v.  inson  v.  Leavitt,  7  N.  H.  102 ;  Cass  v. 

Paul,   136    Mass.    286 ;    Cowdrey   v.  Martin,  6  N.  H.  25. 

Cowdrey,    131   Mass,    186 ;    Bates   v,  ^  Swan  v.  Stephens,  99  Mass.  9. 

Bates,    97    Mass.    892;     Silloway    v.  5  Ala.    Code,  ^§   1892,    1900,   2543; 

Brown,    12    Allen,    30;    Mercier    v.  Norton  v.  Norton  (Ala.),  10  So.  436 ; 

Chace,  11  Allen,  194 ;  Monk  v.  Capen,  Barber  v.  Williams,  74  Ala.  331. 

5  Allen,  146.    In  New  Hampshire  the 


DOWER    AM)    noMKSTKAD.  617 

dower.'  The  widow's  right  to  homestead,  wlien  accorded  by 
law,  is  much  like  that  to  dower,  with  respect  to  a  devise  by 
her  husband.  If  the  devise  is  in  lieu  of  either,  the  intention 
of  the  testator  must  be  so  expressed.  Doubt  will  be  con- 
strued in  favor  of  according  her  the  dower  or  homestead  (or 
both),  in  addition  to  the  devise.^  The  widow  may  have  home- 
stead, after  dower  out  of  the  same  lands  has  been  accepted  by 
her  ;^  yet  if  her  homestead  is  greater  in  value  than  her  dower, 
the  latter  has  been  held  to  be  waived  by  the  acceptance  of  the 
former.  If  less,  she  is  entitled  to  the  difference,  which  may 
be  set  off  to  her  in  another  part  of  the  landed  estate.*  The 
homestead  must  be  set  off  before  the  dower,  so  as  to  ascertain 
what  amount  remains  to  be  assigned  as  dower.  One  proceed- 
ing may  suffice  for  having  both  assignments  ordered.'  Be- 
fore any  estate  of  dower  has  been  set  apart  to  the  widow,  she 
may  have  homestead  in  the  realty  which  is  afterwards  so  set 
apart.** 

Dower  and  homestead  being  recovered  by  a  widow  at  her 
own  suit,  she  should  contribute,  in  the  proportion  which  the 
vaUie  of  her  life  interests  therein  bears  to  the  fee,  towards  re- 
imbursing the  opposite  party  for  removing  incumbrances.^ 
But  would  this  rule  apply  when  her  homestead  and  dower  are 
upon  the  same  property?  And  when  the  dower  is  not  iden- 
tical with  the  homestead  but  is  laid  out  upon  other  realty, 
should  she  contribute  if  the  acceptance  of  it  is  a  forfeiture  of 
the  homestead  benefit?^ 

A  wife's  right  of  dower  and  homestead  may  be  transferred 
from  one  piece  of  real  estate  to  another.  It  is  held  that  "  a 
wife  who  releases  her  right  to  homestead  and  dower  in  the 
family  home,  in  consideration  of  being  paid  an  adequate  share 
of  the  purchase-money,  is  reinvested  with  such  rights  upon 

1  Chaplin  v.  Sawyer,  35  Vt  290 ;  ^  Gragg  t.  Gragg,  65  Mo.  343.  See 
Doane  v.  Doane,  33  Vt.   649 ;  "West    Seek  v.  Haynes,  68  Mo.  13. 

River  Bank  v.  Gale,  42  Vt.  27.   Mis-  *  Bryan  v.  Rhoades,  96  Mo.  485. 

souri    formerly    followed  Vermont.  ^  lb. 

Skonten  v.  "Wood,  57  Mo.  380 ;  Gragg  6  Murdock  v.  Dalby,  13  Mo.  App. 

V.  Gragg,  65  Mo.  343.  41. 

2  In  Vermont,  both.  In  re  Hatch's  '^Selb  v.  Mabee,  14  Brad.  (111.  App.) 
Estate,  62  Vt.300;  many  cases  cited,  574.  See  Selb  v.  Montague,  102  111. 
Tyler,  J.  446. 

8  Walker  v.  Doane.  108  111.  236. 


618  THE  widow's  homestead. 

the  application  of  such  share  in  part  payment  of  a  new  one."  * 
Both  rights  are  based  on  public  policy  and  :  -e  equally  sacred.* 
But  the  widow's  homestead  right,  coupled  with  that  of  her 
minor  children,  is  so  hedged  in  that  she  cannot  disj)ose  of  it 
(nor  can  any  other  holder  of  such  right),  without  compliance 
with  all  the  legal  requisites  for  the  alienation  of  homesteads.* 
A  widow,  entitled  to  both  homestead  and  dower  in  the  de- 
cedent's land,  on  which  she  had  removed  an  incumbrance  by 
payment,  was  not  subrogated  to  the  entire  right  of  the  prior 
holder  of  the  incumbrance.  Her  interests  in  the  estate  should 
bear  their  share  of  the  obligation.  If  the  whole  landed  estate 
of  the  deceased  was  worth  no  more  than  a  thousand  dollars 
(the  homestead  limitation),  and  the  widow  was  entitled  to 
both  homestead  and  dower,  the  latter  is  subject  to  the  former. 
"  So  much  of  the  widow's  dower  as  is  represented  in  the 
homestead  is  not  assigned  her,  but  is  in  abeyance  until  the 
homestead  estate  is  extinguished;  and,  when  that  occurs,  the 
right  of  action  revives."  * 

§  4.  Dower  or  Homester d. 

Homestead  and  dower  are  incompatible  in  several  states. 
The  widow  may  be  required  to  elect  which  she  will  accept.* 
She  may  enjoy  the  homestead  benefit  till  her  dower  is  as- 
signed.^   Even  where  entitled  to  both  on  the  same  land,  she  has 

»  Nance  v.  Nance,  28  111.  App.  587.     man  v.  Will  County  Bank  (111.),  29  N. 

2  Hoskins  v.  Litchfield,  31  111.  143 ;     E.  1090. 

Loeb  V.  McMahon,  80  111.  487 ;  Regan  5  i^    Florida,     the    widow    elects, 

V.  Zeeb,  28  Ohio  St.  483.  whether  to  accept  dower  or    honie- 

3  Abbott  V.  Cromartie,  72  N.  C.  292 ;  stead,  when  the  estate  is  testate. 
McAfee  v.  Bettis,  72  N.  C.  29 ;  Little-  Brokaw  v.  McDougall,  20  Fla.  212. 
jolin  V.  Egerton,  76  N.  C.  468.  See  But  is  restricted  to  dower,  when 
Watts  V.  Leggett,  68  N.  C.  197 ;  War-  children  also  survive  the  decedent, 
ner  v.  Crosby,  89  111.  320 ;  Beecher  v.  and  the  exemption  inures  to  their 
Baldy,  7  Mich.  488;  Dye  v.  Maud,  10  benefit,  if  the  estate  be  intestate. 
Mich.  391.  Wilson  v.  Fridenburg,    19  Fla.  461, 

4  Jones  V.  Gilbert  (111.),  25  N.  E.  566.  In  Mississippi  it  was  held  that  when 
Merritt  v.  Merritt,  97  111.  243,  distin-  the  estate  is  intestate,  and  the  de- 
giiished.  The  foreclosure  of  a  mort-  ceased  husband  was  childless,  the 
gage  by  sale  under  a  decree,  and  the  widow  could  not  have  half  the  es- 
satisfaction  of  the  lien  by  application  tate  and  her  homestead  in  addition; 
of  the  proceeds  to  that  purpose,  does  but  half,  including  the  homestead, 
not  depi'ive  the  mortgagor's  wife  of  Glover  v.  Hill,  57  Miss.  240. 

her  eventual  dower  in  the  land.    Dill-        *  By  the  Arkansas  constitution  of 


DOWER    OK    IIOMKSTKAD. 


019 


been  denied  homestead  when  her  dower  had   been  laid  off  in 
other  land  of  her  husband's  estate.^ 

By  the  provision  of  a  constitution,  the  wife's  homestead 
right  is  merely  that  of  preventing  her  husband's  sole  disjiosal 
of  the  home.  By  a  statute  thereunder,  she  is  entitled  to 
dower,  at  his  death,  out  of  his  lands,  not  excepting  his  home- 
stead. His  heirs  inherit  their  portions  with  the  exempt  char- 
acter attached.  The  widow  has  only  dowser  if  the  estate  is 
intestate  and  there  are  children.^  Where  the  insolvency  of . 
the  estate  is  necessary  to  the  assignment  of  homestead  to  the 
widow  and  minor  children,  solvent  estates  go  directly  to  the 
heirs  and  the  widow  has  her  dowser  only.-' 

Though  homestead  was  subject  to  dower,  but  not  in  addi- 
tion to  it,  it  was  yet  decided  that  the  widow  might  a])ply  for 
homestead  for  the  children,  while  she  had  her  own  dower  as- 
signed.* Under  a  statute  allowing  her  a  year's  support  from 
the  estate,  and  those  giving  dower  and  homestead,  it  was  held 
that  these  benefits  could  not  be  cumulated.^     But,  if  she  choose 


1868,  the  widow  had  a  right  in  the 
rents  and  profits  of  her  deceased  hus- 
band's homestead  so  long  as  she  had 
no  homestead  in  her  own  right  When 
her  dower  was  laid  off  and  assigned 
her,  the  right  in  the  homestead  ceased. 
Const.  (1868),  XII,  4;  Mansf.  Rev.  St 
§g  2587-8 ;  Padgett  v.  Norman,  44  Ark. 
490 ;  Trimble  v.  James,  40  Ark.  393 ; 
Mock  V.  Pleasants,  34  Ark.  63.  She 
has  possession  of  the  principal  resi- 
dence, though  not  necessarily  occu- 
pying it  till  dower  is  assigned.  Car- 
uall  V.  Wilson,  21  Ark.  62. 

'  In  Illinois  it  has  been  held  that 
the  acceptance  of  dower  by  a  widow 
in  other  lands  than  the  homestead  is 
a  relinquishment  of  homestead ;  in 
exposition  of  the  Dower  Act  sec. 
37,  Rev.  Stat  (1874),  ch.  11.  Walker 
V.  Doane,  108  111.  236.  Homestead 
and  dower  rights  may  both  exist  in 
the  same  real  estate.  Peyton  v.  Jef- 
fries, 50  111.  148 ;  Walsh  v.  Reis,  50 
111.  477 ;  Bursen  v.  Goodspeed,  60  111. 
281.  The  widow  is  not  entitled  to 
both  homestead  and  dower,  laid  off 


separately  in  her  late  husband's  es- 
tate. Knapp  V.  Gass,  63  111.  492.  But 
the  acceptance  of  a  sum  in  lieu  of 
dower,  and  the  subsequent  sale  of 
the  land,  at  the  widow's  instigation, 
subject  to  its  liability  for  this  sum, 
cut  her  off  from  homestead  as  against 
the  purchaser.  Wright  v.  Dunning, 
46  111.  272. 

2  Wilson  V.  Frideuburg,  19  Fla,  461 ; 
Const  Fla.,  art  10,  §  1 ;  McClellan's 
Dig.  pp.  528-9.  The  widow's  dower 
extends  to  the  right  of  way  granted 
by  her  late  husband  to  a  railroad 
company,  though  no  homestead  has 
been  set  off  to  her,  it  is  held.  Ven- 
able  V.  Wabash  R'y  Co.  (Mo.),  19  S. 
W.  45. 

3  Zoellner  v.  Zoellner,  53  Mich.  620 ; 
Const  Mich.,  art.  16,  ^2;  Howell's 
Stat,  J-  7721. 

•» Adams  v.  Adams,  46  Ga,  630 ;  Rob- 
son  V.  Lindrum,  47  Ga.  252. 

5/6.;  Singleton  v.  Huff,  49  Ga.  584 ; 
Roff  V.  Johnson.  40  Ga.  555 ;  Blassin- 
game  v.  Rose,  34  Ga.  418. 


620  TUK  widow's  iiomVstkai). 

homestead  under  an  unconstitutional  statute,  she  may  yet 
claim  dower  when  that  has  proved  unavailing.' 

"Where  the  homestead  goes  to  the  surviving  spouse  for  life, 
who  elects  to  take  it  instead  of  the  distributive  share  of  the 
estate  that  would  otherwise  be  his  or  her  portion,Mt  has  been 
decided  that  a  widow  cannot  have  both  dower  and  homestead, 
but  may  elect.^  She  may  have  a  third  of  her  late  husband's 
real  estate  set  off  to  her  in  fee  as  her  distributive  sliare,  or 
she  may  take  the  homestead  for  life  in  lieu  of  it.*  Her  elec- 
tion to  take  the  latter  is  not  inferable  from  the  fact  that  she 
has  retained  the  family  residence  for  a  brief  period  after  her 
husband's  death.^ 

A  widow,  entitled  to  dower  in  land  constituting  the  home- 
stead of  her  husband  at  the  time  of  his  death,  or  set  aside  as 
homestead  after  his  death,  cannot  be  disturbed  in  her  posses- 
sion of  it  when  it  has  been  legally  assigned  to  her  as  dower. 
She  may  hold  it  for  life  against  the  heirs.^  The  rights  of  the 
heirs  remain  in  abeyance  till  her  death." 

If  the  land  is  within  the  quantitative  limit,  and  not  within 
a  municipal  corporation,  the  heirs  may  recover  w^hat  has  not 
been  assigned  as  dower  —  the  land  having  been  the  actual 
family  homestead  of  their  father  at  the  time  of  his  death. 
The  administrator  has  no  right  of  possession  as  against  them. 
Their  right  is  not  dependent  upon  the  filing  of  a  description 
of  the  homestead  for  record,  b}^  their  father.  His  right  to 
the  homestead  acreage  exempt  was  inherited  by  them.  As  to 
any  excess  of  this  acreage  and  of  the  dowser,  an  administrator 
may  be  called  to  settlement  by  the  heirs,  and  be  required  to 
turn  over  the  estate  after  settling  claims  against  it.^ 

If  the  provision  made  for  the  widow,  in  her  husband's  will, 
is  inconsistent  with  the  homestead  estate  to  which  she  is  en- 

I  Page  V.  Page,  50  Ga.  597.  478,  qualifying  McDonald  v.  McDon- 

2McClain'sIowaCode,^pi63-3185.  aid,  76  la.  137,   and  distinguishing 

3  Butterfield  v.  Wicks,  44  la.  310 ;  Mobley  v.  Mobley,  73  la.  654. 

Meyer  V.  Meyer,  23  la.  359.     When  ^-Wilson  v.  Fridenburg,  19Fla.  461; 

the  widow's  only  right  of  possession  same  title,  21  Fla.  386 ;  Fla.  Const,  of 

was  under  the  law  of  dower,   she  1868. 

could  not  claim  possession  by  home-  "  Baker  v.  State,  17  Fla.  406 ;  Wil- 

stead   right.     Cavender   v.   Smith,  8  son  v.  Fridenburg.  19  Fla.  461. 

la.  360.  8  Barco  v.  Fennell,  24  Fla,  378,  sus- 

*  Iowa  Code,  ^8  2007-8,  2440.  taining  the  foregoing  decisions. 
» Egbert  v.  Egbert  (la.),  52  N.  W. 


THE  widow's  occupanot.  621 

titled  bylaw,  and  she  elects  to  take  under  tlie  will, she  cannot 
have  homestead  under  the  statute.'  A  widow,  by  remarry- 
ing, may  lose  her  homestead,  yet  retain  her  dower  right  in  it.^ 

§  5.  The  Widow's  Occupancy. 

The  widow  may  be  entitled  to  the  possession  of  the  home- 
stead, though  not  necessarily  occupying  it  by  living  upon  it. 
or  making  her  home  thereon.  It  need  not  be  her  place  of 
residence,  even  constructively,  under  some  provisions  of  law, 
while  she  is  legally  the  possessor,  and  may  enjoy  the  rev- 
enues till  dower  has  been  assigned  her,  or  till  she  has  obtained 
a  home  in  her  own  right,  or  till  her  widowhood  has  ceased, 
or  till  her  right  has  been  terminated  by  deaMi  ^according  to 
different  provisions  under  different  homestead  systems.  The 
point  is  that  she  may  have  such  right  and  possession  without 
occupancy.^  Such  right  and  possession,  without  ownership  or 
actual  occupancy,  carries  with  it  the  legal  ability  to  sue  and 
recover  for  damage  done  to  her  interest  in  the  homestead.* 

The  requirement  of  occupancy  by  the  widow,  as  a  condi- 
tion to  her  enjoyment  of  the  homestead,  is  made  in  some  of 
the  states,*  The  position  of  the  widow-occupant  is  set  forth 
at  leno;th  in  a  decision^  under  a  statute  which  gives  her  the 

1  Stunz  V.  Stuuz,  131  111.  310  ;  Cow-  sion  of  Hunter,  13  La.  An.  257  ;  Hicks 
drey  v.  Hitchcock,  103  111.  263 ;  Van-  v.  Pepper,  1  Bax.  42 ;  Johnson  v. 
zant  V.  Vanzant,  33  III  485.  Gaylord.  41   la.  366 ;    Ornian  v.  Or- 

2  Bresee  v.  Stiles,  23  Wis.  130.  man.  36  la.  361. 

3  Davenport  v.  Devenaux,  45  Ark.  ^pore  v.  Fore's  Estate  (N.  D.),  50 
341;  Carnall  v.  Wilson,  31  Ark.  63;  N.  W.  713.  After  discussing  other 
Benaugh  v.  Turrentine,  60  Ala.  557 ;  points,  the  court,  through  Bartholo- 
McClurg  V.  Turner,  74  Mo.  45  ;  Gor-  mew,  J.,  said  :  "  The  respondent  con- 
ham  V.  Daniels,  33  Vt.  600 ;  Burk  v.  tends  that  upon  the  husband's  death. 
Osborn,  9  B.  Mon.  579 ;  Clark  v.  his  widow  surviving  him.  and  he 
Burnside,  15  111.  63 ;  McReynolds  being  seized  in  fee  of  the  land  then 
V.  Counts,  9  Gratt.  343 ;  Brown  v.  occupied  by  himself  and  his  family 
Brown,  33  Miss.  39  (Miss.  Stat  of  1865).  as  a  homestead,  and  dying  intestate. 

*  Gilbert  v.  Kennedy,  33  Mich.  5;  the  fee  to  the  homestead  goes  to  his 
Foster  v.  Elliott,  33  la.  316 ;  Daven-  heirs  at  law,  under  the  statute  of  de- 
port V.  Devenaux,  45  Ark.  341 ;  Ben-  scent;  but  that  the  homestead  right, 
tonville  R.  Co.  v.  Baker,  45  Ark.  352 ;  including  the  right  to  possession. 
Cooley  on  Torts,  336.  whether  the  husband  died  testate  or 

5  Carter  v.  Randolph,  47  Tex,  376 ;  intestate,  survives,  and  passes  to  his 

Runnels    v.   Runnels,   37    Tex.   519 ;  widow,  to  be  enjoyed  by  her  so  long 

O'Docherty  v.  McGloin,  25  Tex.  72;  as  she  continues  to  occufjv  the  prem- 

Green  V.  Crow,  17  Tex.  180;  Succes-  ises  as  a  homestead.    Appellaut  takes 


622 


THE    WIDOW  S    HOMESTEAD. 


right  of  occupancy  of  the  entire  homestead  of  her  husband, 
who  was  seized  in  fee  of  his  homestead.  She  can  enjoy  the 
exempt  ])roperty  only  on  condition  that  she  continue  to  main- 
tain her  home  thereon;  and  this,  whether  she  lives  in  widow- 
Iowa,  580 ;  Meyer  v.  Meyer,  23  Iowa, 
3o9;  Bntterfield  v.  Wicks,  44  Iowa, 
310;  Maliaffy  v.  Malmffy,  63  Iowa, 
55,  18  N.  W.  Rep.  685.  And  it  has 
also  been  held  that  during  such  oc- 
cupancy the  heirs  cannot  interfere 
therewith,  nor  claim  partition.  Nich- 
olas V.  Purczell,  21  Iowa,  265 ;  Dodds 
V,  Dodds.  26  Iowa,  311.  But  it  has 
also  been  held  that  such  occupancy 
cannot  be  claimed  in  addition  to  the 
distributive  share.  Meyer  v.  Meyer, 
supra;  Butterfield  v.  Wicks,  sujira; 
Smith  V.  Zuckmeyer,  53  Iowa,  14,  3 
N.  W.  Rep.  782.  The  survivor  holds 
this  distributive  share  exempt  from 
the  debts  of  the  decedent  Mock  v. 
Watson,  41  Iowa,  244:  Kendall  v. 
Kendall,  42  Iowa,  464;  Thomas  v. 
Thomas,  73  Iowa,  657,  35  N.  W.  Rep. 
693.  Tlie  supreme  court  of  Iowa, 
under  these  statutes,  hold  that,  while 
the  survivor  is  entitled  to  occupy  the 
homestead  for  a  reasonable  time  in 
whicli  to  make  a  selection  between  a 
life  estate  in  the  homestead  and  the 
distributive  share  provided  by  law 
(Cunningham  v.  Gamble,  57  Iowa, 
46,  10  N.  W.  Rep.  278),  yet  continued 
occupancy  of  the  homestead  will  be 
held  an  election  to  take  the  home- 
stead for  life.  Conn  v.  Conn,  58 
Iowa,  747,  13  N.  W.  Rep.  51 ;  Butter- 
field  V.  Wicks,  supra;  Ilolbrook  v. 
Perry,  66  Iowa.  286,  23  N.  W.  671. 
By  section  2455,  Code  Iowa,  it  is  pro- 
vided that,  if  the  intestate  leave  no 
issue,  one-half  of  his  estate  shall  go  to 
his  family  and  the  other  half  to  his 
widow.  In  Burns  v.  Keas,  supra,  it  was 
held  that  in  such  case  the  widow  takes 
one-third  as  her  distributive  share 
and  one-sixth  as  heir ;  and  in  Smith 
v.  Zuckmeyer,  supra,  it  is  held  that 


issue  upon  the  last  propositvon,  and 
claims  that  the  homestead  right  of 
the  widow,  including  the  possession 
and  usufruct,  ceases  and  determines 
at  tlie  final  settlement  and  distribu- 
tion of  the  estate.  The  decision  of 
the  issue  involves  a  construction  of 
that  portion  of  the  statute  which 
reads:  'Upon  the  death  of  either 
husband  or  wife,  the  survivor  may 
continue  to  possess  and  occupy  the 
whole  homestead  until  it  is  other- 
wise disposed  of  according  to  law.' 
This  .  .  .  was  taken  from  tlie 
statutes  of  Iowa.  .  .  .  Code  Iowa, 
§  2007.  The  context,  however,  w-as 
changed  to  conform  to  our  different 
policy.  In  Iowa,  the  next  following 
section  (2008)  pi'ovides  that  the 
'setting  off  of  the  distributive 
share  .  .  .  shall  be  such  a  dis- 
posal ...  as  is  contemplated  in 
the  preceding  section.  But  the  sur- 
vivor may  elect  to  retain  the  home- 
stead for  life  in  lieu  of  such  share  in 
the  real  estate  of  the  deceased.'  The 
distributive  shai'e  thus  spoken  of  is 
one-third  in  value  of  all  the  legal  or 
equitable  estate  possessed  by  the  de- 
ceased at  any  time  during  marriage, 
and  which  has  not  been  sold  on  ju- 
dicial sale,  and  to  which  the  survivor 
has  relinquished  no  rights.  See  Id., 
§  2440.  And  this  share  is  not  affected 
by  will,  unless  the  survivor  consents 
thereto.  Id.,  §  2452.  There  is  noth- 
ing in  our  law  corresponding  with 
sections  2008,  2440  and  2452  of  the 
Iowa  Code.  Under  those  statutes 
the  right  of  the  survivor  to  possess 
and  occupy  the  homestead  for  life 
has  been  repeatedly  declared.  Floyd 
V.  Mosier,  1  Iowa,  512;  Burns  v. 
Keas,  21  Iowa,  257 ;  Size  v.  Size,  24 


THE    "WIDOW  8    OCCUPANCY. 


623 


hood  or  remarries.  This  right  of  occupancy  she  is  entitled  to 
enjoy  as  surviving  spouse,  against  the  heirs  and  devisees  of 
the  deceased. 

While  a  widow  has  her  houseiiold  furniture  stored  in  her 
home,  she  cannot  be  treated  as  a  non-occupant.'  But  her  re- 
moval terminates  her  homestead  right  when  she  does  not  re- 
tain such  hold  of  her  house,  even  though  abandonment  is  not 
intended  by  her.-'  Though  the  homestead  be  in  excess  of  the 
statutory  limitation,  the  widow  may  hold  it  all  till  partition 
made  between  the  exempt  and  the  liable  portions.' 

A  husband  and  wife  lived  three  years  on  their  homestead, 
then  sold  it,—  she  expressly  relinquishing  her  dower  right. 
Both  voiuntaril}^  surrendered  the  premises.  Upon  his  death, 
she  could  not  maintain  a  writ  of  entry  to  recover  the  property.* 

A  beneficiary  in  occupancy  of  her  homestead  with  her  see- 


in  such  case,  where  the  survivor 
elects  to  hold  the  homestead  for  life, 
he  thereby  surrendered  the  one-third 
or  distributive  share  onlj',  and  that, 
as  to  the  fraction  which  he  took  as 
heir,  it  was  not  affected  by  his  con- 
tinuous possession  of  the  homestead." 
After  an  extended  exposition  of  the 
North  Dakota  homestead  statute,  the 
court  concluded  :  "  Keeping  in  mind 
the  entire  statute  and  the  undoubted 
policy  of  our  laws,  it  seems  clear 
that  the  purpose  of  this  law  is  that, 
upon  the  death  of  the  husband  and 
father,  the  widow  should  continue 
to  possess  and  occupy  the  homestead 
with  the  children,  during  her  entire 
life,  if  she  so  elect,  and  upon  her 
death  the  children  may  continue  so 
to  possess  and  occupy  the  homestead 
until  the  youngest  child  becomes  of 
age,  so  that  at  no  time,  until  the 
youngest  child  reaches  the  period 
when  the  law  declares  him  able  to 
care  for  himself,  shall  this  family  be 
without  a  home,  or  —  in  case  the 
homestead  be  a  farm  —  without  the 
means  of  obtaining  a  livelihocd.  But 
this  occupancy,  either  of  the  surviv- 
ing widow  or  children,  would  be  ter- 


minated bv'  any  disposition  of  the 
homestead  according  to  law,  as  here- 
inbefore indicated.  In  view  of  the 
facts  of  this  case  we  deem  it  projier 
to  add  that  the  statutes  will  be 
searched  in  vain  for  any  intimation 
that  the  widow's  rights  as  survivor 
are  affected  in  any  manner  by  the 
absence  of  issue  or  bj'  the  fact  of  a 
second  marriage.  This  last  point  is 
directly  ruled  in  Nicholas  v.  Purczell, 
supra.  To  the  point  made  by  appel- 
lant that  a  homestead  interest  cannot 
attach  to  property  owned  in  common, 
we  reply  that  such  is  the  case  only 
where  the  common  ownership  is 
prior  in  point  of  time  to  the  initiation 
of  the  homestead  right.  In  this  case 
the  homestead  right  existed  before 
descent  cast  It  existed  in  the  life- 
time of  the  decedent,  and  he  was 
powerless  to  destroy  it.  The  subse- 
quent ownership  in  common  of  the 
fee  cannot  affect  the  prior  right" 

1  Brettner  v.  Fox,  100  Mass.  234. 

2  Paul  V.  Paul,  136  Mass.  286;  Fos- 
ter v.  Leland,  141  Mass.  187. 

^  Parks  V.  Reilly,  5  Allen,  77. 
4  Foster  v.  Leland,  141  Mass.  187. 


624  TIIK    WII)i)\v''s    HOMESTEAD. 

ond  husband  cannot  be  ejected  under  a  judgment  against  her 
first  husband  from  whom  she  derived  the  homestead, —  who 
had  title  chiira.^ 

Upon  their  father's  remarriage,  his  children  lived  with  him 
and  their  step-mother  till  his  death,  and  then  ceased  to  be 
members  of  the  family.  A  homestead  v/as  set  apart  by  the 
county  court  for  the  widow  and  her  children  by  him.  She 
married  again,  and  removed  to  another  county,  intending  not 
to  return  unless  compelled  to  do  so  by  unavoidable  circum- 
stances, but  she  acquired  title  to  no  other  home.  Under  these 
circumstances,  the  first  set  of  children  were  denied  partition 
of  the  homestead  which  had  been  acquired  by  their  father's 
separate  means.^  Not  only  occupancy  but  continued  widow- 
hood is  required  in  several  states  for  the  retention  of  the 
homestead;'  but  the  remarriage  of  a  widow  does  not  affect 
her  right  of  homestead  in  the  estate  of  her  first  husband,  as 
an  invariable  rule.* 

The  widow  and  heirs  of  the  occupant  of  a.  homestead  may 
hold  it  as  tenants  in  common  till  partition,  though  it  be  in  ex- 
cess of  the  statutory  limitation.  Should  the  administrator 
sell  the  inheritance  to  pay  debts  of  the  deceased,  the  pur- 
chaser, taking  the  place  of  the  heirs  in  relation  to  the  widow, 
becomes  a  tenant  in  common  with  her  in  the  homestead 
estate.'*  If  the  widow  has  a  homestead  estate  in  the  equity 
of  redemption,  the  purchaser  cannot  defeat  it  by  buying  a 
certificate  of  purchase  given  on  a  sale  to  execute  a  judgment 
of  moi  tg  ige  foreclosure  —  the  mortgage  having  been  executed 
by  both  the  deceased  husband  and  his  wife  with  homestead 
release  by  her —  and  by  taking  a  master's  deed  for  the  land, 
while  he  and  the  widow  of  the  deceased  are  tenants  in  com- 
mon in  the  homestead  estate.  The  position  of  the  two  is  this : 
He  holds  his  subsequently  acquired  title  in  trust  for  the  estate 

1  Morrissey  v,  Stephenson.  86  III.  §^  1-4 ;  Howell's  Annot.  Stat,  of 
344.  Mich.,   §  7721   et  seq.;    Const.  Nor. 

2  Foreman  v.  Meroney,  62  Tex.  723.     Cai\,  art.  X,  §  2 ;    S.  &  B.'s  Stat,  of 
3§  5437  of  Ohio  Rev.    Stat,    was    Wis..  §  2271,  p.  1318.     There  are  like 

amended  June  22,  1889,  so  that  home-  provisions  in  some  other  statutes,  but 

stead    continues    "  so    long    as    the  these  will  suffice  for  illustration. 

widow,  if  she    remains  unmarried,  *  Miles    v.    Miles,    46    N.  H.    261 ; 

resides  thereon."     Ohio  Gen.  Laws,  Yeates  v.  Briggs,  95  111.  79. 

1889,  p.  6 ;  Const.  Michigan,  art.  XVI,  »  Montague  v.  Selb,  106  111.  49. 


RKr.ATlVK    TO    UK  I  US.  625 

in  common;  slie,  by  paying  her  part  of  u'liat  he  gave  for  it, 
may  avail  herself  of  an  equal  interest  with  him.  For  one  co- 
tenant  cannot  purchase  an  outstanding  title,  interest  or  incum- 
brance to  the  prejudice  of  another  one.  The  purchase  will  be 
deemed  to  inure  to  the  common  benefit,  though  not  so  de- 
signed b}'  the  purchaser.  This  rule  applies  whether  title 
accrues  under  an  instrument  or  by  operation  of  law,  because 
it  rests  on  the  mutual  duty  of  co-tenants.' 

The  inchoate  right  of  homestead  becomes  a  vested  one 
when  it  is  set  out  in  specific  property.  The  widow's  right 
thus  assigned  is  an  estate  for  life,  and  it  does  not  depend  upon 
her  occupancy  of  the  premises.  It  is  much  like  dower.  She 
may  sell  her  estate  in  either.-  When  the  homestead  is  a  life 
estate,  the  reversion  may  be  levied  upon.'  But  her  right, 
whatever  its  duration,  holds  good  against  her  late  husband's 
heirs,  grantees  and  creditors.* 

§  6.  Relative  to  Heirs. 

Heirs  at  law  may  have  their  rights  assigned,  in  the  estate 
of  the  deceased  owner  of  a  homestead,  subject  to  the  rights 
of  the  widow  and  those  specially  appertaining  to  minor  co- 
heirs by  reason  of  their  minority,  wherever  the  law  grants 
exemption  provisions  to  widows  and  minors  in  such  sense  as 
not  to  render  the  homestead  right  an  estate.  When  not  an 
estate,  it  yet  secures  the  privilege  of  possession  and  enjoy- 
ment against  creditors:  not  against  lawful  heirs.  The  pur- 
pose of  the  homestead  provision  is  to  protect  against  execution 
for  debt :  not  against  a  partition  of  the  decedent's  estate.  Leg- 
islation would  be  necessary,  beyond  the  mere  exemption  pro- 
vision, if  partition  among  heirs  is  to  be  inhibited.^ 

1  lb.  she    own    land  in   her  own    right 

2  Lake  v.  Page,  63  N.  H.  318;  Gen.  Nichols  v.  Nichols,  62  N.  H.  631.  On 
Stat,  ch.  138,  §  1 ;  ch.  202,  §  2.  For-  the  death  of  a  wife  leaving  no  minor 
merly,  occupancy  was  essential  on  children,  or  on  completion  of  the 
the  part  of  the  widow.  Judge  of  children's  minority,  the  husband  sur- 
Probate  v.  Simonds,  46  N.  H.  363;  viving  is  entitled  to  the  homestead 
Norris  v.  Moulton,  34  N.  H.  392.  they  have  enjoyed.     N.  H.  Gen.  L.. 

3  Cross  V.  Weare,  62  N.  H.  125.  ch.  138.  §§  1,  5,  6 ;  Squire  v.  IMudgett 

4  Gen.  Stat  of  N.  H.,  ch.  124,  §  1 ;  61  N.  H.  149. 

Bachelder  v.   Fottler,  62  N.  H.  445.  &  Patterson  v.  Patterson,  49  Mich. 

overniling   Spaulding's    Appeal.    52  176 :    Robinson   v.   Baker,   47   Mich. 

N.  H.  336.     She  is  so  entitled  tliough  619 ;  Turner  v.   Bennett  70  III.  26a 
40 


626 


TIIK    WIDOW  S    IIOMKSTEAD. 


If  tho  exemption  h  given  only  to  affect  creditors,  heirs  may 
claim  not  only  the  partition  of  the  decedent's  estate,  but  also 
have  the  homestead  itself  divided.  But  adult  heirs  cannot 
disturb  the  widow  who  is  in  possession  of  the  family  resi- 
dence during  the  pendency  of  the  estate's  administration. 
They  may  take  means  to  expedite  the  probate  proceedings 
and  settlement  of  the  estate  when  such  course  becomes  neces- 
sary to  prevent  unreasonable  delay.  But  the  right  to  claim 
partition  does  not  imply  the  right  to  disturb  the  possession 
granted  to  the  widow  and  minor  children  under  the  home- 
stead-protection legislation  and  constitutional  provisions.^ 

Probate  courts  have  original  jurisdiction,  in  may  states,  in 
adjusting  the  rights  of  widows  and  children  relative  to  home- 
stead when  the  administration  of  the  estate  involves  those 
rights ;  in  making  allotment  of  homestead  when  none  was  set 
apart  by  the  decedent,  and  the  like.^ 


Compare  Eggleston  v.  Eggleaton,  72 
IlL  24 ;  Sontag  v.  Schmisseur,  76  111. 
541 ;  Fight  v.  Holt,  80  111.  84.  But 
see,  on  this  subject,  Freeman  on  Co- 
tenancy, §  60 ;  Nicholas  v.  Purczell, 
21  la.  265 ;  Dodds  v.  Dodds,  26  la. 
311;  Hotruian  v.  Neuhaus,  30  Tex. 
633.  And  see,  in  states  where  the 
widow  has  the  fee  in  a  homestead, 
Doane  v.  Doane,  83  Vt.  652 ;  Day  v. 
Adams,  42  Vt.  517;  Estate  of  De- 
laney,  37  Cal.  180.  The  constitu- 
tional provisions  of  Michigan,  which 
give  the  homestead  right,  are  "ex- 
emption provisions  strictly,  and  give 
the  right  only  as  against  creditors. 
In  that  respect,  they  diiler  from  pro- 
visions existing  in  some  other  states. 
In  Massachusetts,  the  widow's  home- 
stead right  is  not  only  entirely  inde- 
pendent of  any  question  of  indebted- 
ness, but  she  is  hy  statute  expressly 
empowered  to  sell  and  convey  it.  It 
is  not  therefore  a  mere  right  to  oc- 
cupy, but  an  estate.  Mercier  v.  Chace, 
11  Allen,  194;  Monk  v.  Capear,  5 
Allen,  146.  In  New  Hampshire  the 
statute  expressly  gives  a  homestead 
to  the  widow  as  against  heirs  as  well 


as  creditors.  Spaulding's  Appeal,  52 
N.  H.  336.  In  Vermont,  the  home- 
stead passes  by  statute  to  the  widow 
and  children  '  in  due  course  of  de- 
scent.' Keyes  v.  Hill,  30  Vt.  760,  768. 
In  Iowa,  by  statute,  'upon  the  death 
of  either  husbaud  or  wife  the  sur- 
vivor may  continue  to  possess  and 
occupy  the  whole  homestead  until  it 
is  otherwise  disposed  of  according  to 
law.'  Nicholas  v.  Purczell,  21  la^ 
265;  Dodds  v.  Dodds,  26  la.  312. 
And  see  Eustache  v.  Rodaquest,  11 
Puslr,  42.  No  one  can  fail  to  see 
that  these  provisions  differ  essen- 
tially from  those  contained  in  the 
constitution  of  this  state ;  and,  as 
was  said  in  Robinson  v.  Baker, 
supra,  the  statutes  have  not  en- 
larged the  right  in  this  particular." 
Opinion  by  Judge  Cooley  in  Patter- 
son V.  Patterson,  49  Mich.  176.  All 
the  justices  concurred. 

1  Patterson  v.  Patterson,  49  Mich. 
176.  A  widow  was  held  to  have 
waived  her  right  by  failing  to  claim 
tlie  benefit  of  partition.  Chilson  v. 
Reeves,  29  Tex.  276. 

-'Dolan    V.    Dolan,    91    Ala,    152; 


KELATIVE   TO   HEIE8.  627 

A  widow  brought  an  action  in  ejectment  and  introduced 
probate  court  proceedings  setting  apart  to  her  one  hundred 
and  sixty  acres  of  hind,  as  her  homestead,  out  of  two  hundred 
and  forty  of  wiiicli  her  husband  died  possessed,  which  he  had 
occupied  as  liis  homestead,  and  which  slie,  in  the  ])robate 
court,  liad  alleged  to  not  .exceed  in  value  one  thousand  dol- 
lars—  the  monetary  limit  in  her  state.  On  appeal,  the  su- 
preme court  said  that  the  probate  court  had  no  jurisdiction; 
that  it  is  only  where  the  real  property  left  by  the  decedent 
does  not  exceed  in  amount  one  hundred  and  sixty  acres  that 
such  court  can  order  the  Avidow's  homestead.  The  reason  is 
that  in  such  case  there  is  no  need  of  selection,  and,  jprinfia 
facie,  no  occasion  for  contest  on  the  part  of  creditors,  heirs, 
devisees  or  others  interested  in  the  estate  subject  to  adminis- 
tration.' When  the  homestead  exceeds  the  monetary  limit, 
the  widow  may  select  other  land ;  and  the  heirs  cannot  deny 
her  the  right  of  homestead  because  the  value  is  excessive  and 
also  deny  her  the  right  to  select  other  land  to  the  allowable 
amount.^  Though  too  much  be  a\varded  her,  a  probate  order 
setting  apart  a  homestead  for  a  widow  and  children  cannot 
be  assailed  collaterally,  but  stands  unless  regularly  vacated.* 
The  probate  jurisdiction  cannot  always  cover  every  case  in- 
volving homestead  right  —  such,  for  instance,  as  the  foreclos- 
ure of  a  mortgage.* 

A  probate  court  having  assigned  a  homestead  to  a  widow, 

Thompson  V.  Thompson,  51  Ala.  493;  11  Tex.  249;  Byram  v,   Byram,   27 

Turner  v.  Whitten.  40   Ala,  530 ;  An-  Vt.  295. 

drevvs  v.  Melton,  51  Ala.  400;  Rotten-  l  James  v.  Clark,  89  Ala.  606;  Ala- 
berry  V.  Pipes,  53  Ala.  447  ;  Hudson  bama  Code  (1886),  ^§  2550-2.  2562-5  : 
V.  Stewart,  48  Ala.  209;  Booth  v.  Acts  1886-7,  p.  112,  amending  §g  2562- 
Goodwin.  29  Ark.  633;  Smith's  Es-  2564. 

tate,  51  Cal.  564 :  Mawson  v.  Maw-  2  Dolan  v.  Dolan,  91  Ala.  152 ;  Ala- 
son,  50  Cal.  539 ;  McCauley's  Estate,  bama  Code,  §  2544. 
50  Cal.  544;  Camento  v.  Dupuy,  47  ^Fossett  v.  JIcMahan,  74  Tex.  546. 
Cal.  79 ;  Estate  of  Orr,  29  Cal.  102 ;  *  Cotfey  v.  Joseph,  74  Ala.  271  ; 
Holden  v.  Pinney,  6  Cal.  234 ;  Dease  Willis  v.  Farley,  24  Cal.  491 ;  Fallon 
V.  Cooper,  40  Miss.  114;  Cannon  v.  v.  Butler,  21  Cal.  30;  Heutsch  v. 
Bonner,  38  Tex.  491 ;  Hamblin  v.  Porter,  10  Cal.  559 ;  Belloe  v.  Rogei-s, 
Warnecke,  31  Tex.  91 ;  Little  v.  Bird-  9  Cal.  126;  Falkner  v.  Folsom,  6  Cal 
well,  27  Tex.  690 :  Runnels  v.  Run-  412.  {Sec  Ellisson  v.  Halleck,  6  Cal. 
nels, 27 Tex.  515;  Connelly.  Chandler,  392,  overruled  in   Belloe  v.  Rogers, 

supra.) 


628  THE  widow's  homestead. 

out  of  the  estate  of  her  late  husband,  without  notice  to  the 
heirs,  they  brought  an  action  to  have  the  order  set  aside  on 
the  ground  that  the  realt}^  thus  assigned  was  of  vahie  beyond 
the  monetary  limitation  of  five  thousand  dolhirs.  They 
proved  the  homestead  assigned  her  to  be  worth  twice  that 
sum ;  but  the  court  sustained  the  probate  decree  on  the  ground 
that  the  judge  making  it  had  jurisdiction  and  that  tlic  value 
was  proved  before  him  to  be  not  in  excess  of  the  statutory 
restriction.^ 

When  a  probate  court,  disregarding  the  widow's  claim,  or- 
dered the  homestead  of  the  decedent  to  be  sold  for  the  pay- 
ment of  his  debts,  it  was  held  that  the  purchaser  obtained  no 
title  as  against  her  rights;  that  he  took  nothing  for  his 
money.^ 

A  deceased  husband  having  left  no  debts,  the  widow  claimed 
the  homestead,  which  he  had  held,  as  against  the  heirs.  This 
was  denied  —  the  court  holding  that  she  could  not  claim  as 
against  the  heirs  because  homestead  is  a  protection  from  credit- 
ors only ;  that,  as  there  were  no  creditors,  the  homestead  was 
terminated  at  the  death  of  her  husband  —  the  estate  passing 
at  once  to  the  heirs  by  the  statute  of  descents,  subject  only  to 
the  widow's  dower.''  But  heirs  cannot  divest  a  homestead 
right,  ah'eady  vested  in  the  widow,  by  paying  off  all  the  debts 
of  the  estate.* 

Where  constitution  provisions  for  homestead,  in  favor  of 
the  widow  and  minor  heirs,  are  not  supplemented  by  statute 
giving  them  effect  in  case  of  indivisible  estates  exceeding  the 
homestead  limit,  the  administrator  of  the  decedent  owner  may 
hold  possession  and  pay  the  claim  of  the  widow,  if  she  is  the 
only  creditor.  Unless  the  estate  is  insolvent  and  indebted, 
the  homestead  right  does  not  attach,  in  such  case;  and  the 
estate  goes  to  the  heirs,  subject  to  the  widow's  dower.^ 

1  Kearney  v.  Kearney,  72  Cal.  591 ;  <  Tucker  v.  Tucker,  103  N.  C.  170. 
Cal.  Civ.  Code  of  Proc,  §  1465.  Com-  By  the  act  of  February,  1876,  in  Ala- 
pare  Williams  v.  Whitaker  (N.  C),  bama,  the  widow  has  absolute  estate 
14  S.  E.  924.  in  the   homestead   of  her  deceased 

2  Anthony  v.  Rice  (Mo.),  19  S.  W.  husband,  when  his  estate  has  been 
423.  declared    insolvent.      McDonald     v. 

3  Barker  v.   Jenkins,   84  Va.  895 ;  Berry,  90  Ala.  464. 

Helm  V.  Helm,  30  Gratt.  404.  *Zoellner  v.  Zoellner,  53  Mich.  621. 


RKLATIVK    TO    HKIRS.  629 

Inheritance  is  governed  by  tlie  law  existing  at  the  time  of 
the  death  of  the  owner.'  When  tlie  homestead  descends  to 
the  heirs  at  law,  freed  from  the  claims  of  the  decedent's 
creditors,  it  is  to  be  estimated  at  its  worth  when  he  died. 
Subsequent  advance  in  value  does  not  render  any  excess  of  the 
monetary  homestead  limit  liable  to  creditors  at  the  time  the 
heirs  come  into  actual  possession,  if  there  was  no  excess  when 
their  rio-ht  vested  on  the  death  of  their  ancestor.-  Homestead 
exemption  passes  to  the  heirs  of  the  homestead,  being  inci- 
dent to  the  inheritance  of  the  land  ;  it  passes  "to  whomsoever 
the  title  descends,"  though  the  heirs  be  adults,  and  they  need 
not  occupy.' 

A  decedent  left  a  widow  and  eight  children,  all  majors.  The 
husband  of  one  of  them  bought  the  interests  of  the  others, 
and  then  sued  the  mother  for  rent  for  all  but  her  share  —  she 
occupying  the  whole  premises.  He  failed  on  the  ground  that 
she  had  her  homestead  right  in  the  whole,*  The  widow  is 
not  liable  for  the  rents  and  profits  of  her  homestead  to  any  of 
the  heirs  of  the  deceased,  when  she  rightly  holds  it;  but  if  the 
probate  court  has  erroneously  set  apart  a  homestead  to  her, 
and  the  order  is  subsequently  vacated  or  corrected  by  direct 
proceedings,  she  may  be  called  to  account  to  the  minor  heirs 
for  rents  received  while  unduly  holding  the  property  as  her 
homestead.^  A  homestead  assigned  to  the  widow  carries  with 
it  the  crops  growing  upon  it  when  her  husband  died,  and 
which  still  remain  upon  it.  She  is  entitled  to  them  as  against 
both  heirs  and  creditors.^ 

1  Burleson  v.  Burleson,  28  Tex.  418.  and  community  debts,  see  Stringfel- 

'^Parisot  v.  Tucker,  65  Miss.  439.  low  v.  Sorrels  (Tex.),  18  S.  W.  689. 

3  Miller's  Ex'r  v.  Finnegan,  26  Fla,  6  Vaughn  v.  Vaughn,  88  Tenn.  742; 

29.  Edwards  v.  Thompson,  85  Tenn.  721 ; 

4Keyes  v.  Hill,  30  Vt  759.  Carson  v.  Browder,  2  Lea,  701 ;  Shof- 

5  Linch   V.  Broad,   70  Tex.   92,   96.  ner  v.  Shof  ner,  5  Sneed,  95 :  Pickens 

When  there  are  no  community  debts,  v.   Reed,    1   Swan,   80 ;  Tenn,   Code, 

community  property  is  inherited  di-  i|§  B250,  2943-4  (2119o,  2119b,  Ad.  M. 

rectly  by  the  children  of  the  dece-  &  V.).    In  Tennessee,  the  widow  was 

dent — that  is,  the  decedent's  interest  held  to  have  no  right  to  homestead 

in  it.     Clark  v.  Nolan,  38  Tex.  416.  in  property  of  her  deceased  husband 

As  to  the  effect  of  increase  in  the  when  it  consisted  of  a  remainder  on 

value  of  the  wife's  separate  property,  the  death  of  his  mother  who  held  as 

in  relation  to  community  property  his  father's  widow.     As  lie  liad  no 

right  of  possession,  he  had  no  home- 


630  TiiK  widow's  homestead. 

Heirs  having  praj-ed  for  partition,  and  alleged  that  the 
widow"  was  entitled  to  homestead  in  the  estate  which  they 
sought  to  have  divided,  the  court  took  the  allegation  as  an 
admission  of  her  right  on  their  part,  after  default  bad  been 
decreed.^  When  partition  is  impracticable,  and  sale  neces- 
sary, to  w^hich  the  widow  consents  on  being  promised  an 
equivalent  in  money  for  her  dower  interest,  she  is  not  neces- 
sarily entitled  to  a  thousand  dollars  from  the  proceeds  of  the 
sale;  for  her  homestead  interest  might  not  have  been  worth 
so  much  had  her  dower  been  first  laid  off.  In  a  case  present- 
ing this  situation,  the  homestead  was  a  life-estate  with  the 
remainder  in  the  heirs.  The  widow  was  entitled  to  her  life- 
occupancy  in  one  thousand  dollars'  worth  of  the  estate.  She  was 
entitled  to  the  value  of  that  interest  from  the  proceeds  of  the 
sale,  or  to  a  thousand  dollars  of  it  invested  and  the  interest 
paid  to  her  during  her  life,  and  the  princi{)al  paid  to  the  heirs 
at  her  death.-  When  homestead  has  been  assigned  to  a  widow, 
she  has  been  held  entitled  to  hold  it  though  it  appreciate 
afterwards  in  value  beyond  the  monetary  limitation.' 

§  7.  Relative  to  Alienation. 
When  the  widow  and  heirs  of  a  deceased  householder  sell 
the  homestead  property  while  it  is  yet  exempt  and  not  aban- 
doned, the  grantee  takes  it  free  from  the  ordinary  debts  of 
the  decedent ;  free  from  debts  not  secured  by  valid  liens  on 
the  homestead  property.*  But  abandonment  of  the  home- 
stead protection,  by  the  widow  and  the  heirs  when  all  are  of 
age,  would  be  its  exposure  to  the  creditors  of  the  decedent. 
"No  length  of  time  will  give  the  homestead  such  immunity 
from  ordinary  debt  as  to  bar  creditors  after  the  exemption 

stead :    so  his  widow  could  derive  the  land  assigned  for  homestead  has 

none  from    him.      Howel  v.   Jones  increased  in  value,  a  new  assignment 

(Tenn.),  19  S.  W,  757.  may  be  had  to  reduce  the  quantity, 

1  Schaefer  v,  Kienzel,  133  111.  430 ;  it  would  seem  that,  when  it  has  de- 
S.  C,  15  N.  E.  Rep.  164;  Knapp  v.  preciated  in  value,  for  tlie  same  rea- 
Gass,  63  111.  495.  son  a  new  assignment  might  be  had 

2  Mei-ritt  v.  Merritt,  97  111.  243.  See  to  increase  the  quantity."  Kenley  v. 
Allen  V.  Russell,  39  Ohio,  336.  Bryan,  110  111.  653. 

3  In  declining  to  make  a  re-assign-  ''  Dayton  v.  Donart,  83  Kas.  356 ; 
meut  of  homestead  to  a  widow  be-  Morris  v.  Ward,  5  Kas.  339 ;  Hixon 
cause  of  the  alleged  change  of  its  v.  George,  18  Kas.  354,  £60. 

value,  the  court  said :   "  If,  because 


EEL  ATI  VE    TO    ALIENATION.  681 

right  has  expired.  In  the  JSrst  case  above  cited,  it  is  said : 
"When  a  man  dies  intestate,  leaving  a  widow  and  children, 
the  ultimate  title  to  his  homestead  descends  to  liis  widow  and 
children  just  the  same  as  the  title  to  all  his  other  real  estate 
docs,  except  that  it  descends  to  them  subject  to  a  homestead 
interest  vested  in  the  widow  and  such  of  the  children  as  oc- 
cupy the  homestead  at  the  time  of  the  intestate's  death.  The 
construction  of  the  statutes  is  in  harmony  with  justice  and 
witii  all  our  statutes  and  with  every  ]K)rtion  thereof,  except 
perhaps  with  the  word  'absolute'  contained  in  section  2  of 
the  act  relating  to  descents  and  distribution.^  But  the  word 
*  absolute,'  as  used  in  said  section  2,  evidently  does  not  mean 
what  it  would  in  some  other  cases.  It,  together  with  the 
words  used  in  connection  therewith,  simply  means  that  so 
long  as  the  w^idow  and  children  continue  to  occupy  the  home- 
stead, and  tlic  widow  does  not  marr}'  again,  and  one  or  more 
of  the  children  still  remain  minors,  they  may  hold  the  prop- 
erty as  their  homestead  as  though  it  were  their  absolute  prop- 
erty, free  from  all  debts  (except  incumbrances  given  by  hus- 
band and  wife,  and  taxes,  and  debts  for  purchase-money  and 
improvements),  and  free  from  division  or  distribution.  But 
evidently  from  the  statutes  they  hold  the  property  as  their 
absolute  property,  free  from  debts  and  division  only  while 
some  of  them  occupy  the  same  as  their  homestead.  If  they 
all  abandon  the  propert}"  as  a  homestead,  it  then  becomes  sub- 
ject to  debts  and  division  the  same  as  though  it  never  was  a 
homestead.  ...  If  the  property  or  any  interest  therein 
is  sold  and  conveyed  while  the  property  is  still  occupied  as  a 
homestead  b}^  the  w4dow  or  any  one  or  more  of  the  minor 
children,  the  title  to  such  property  or  interest  passes  to  the 
purchaser  free  from  all  debts,  except  prior  incumbrances  given 
by  the  intestate  and  wife,  or  grantor  and  wife  or  husband,  and 
taxes,  and  debts  for  purchase-money  and  improvements,  al- 
though the  property  may  afterward  be  abandoned  as  a  home- 
stead by  the  widow  and  children."  The  idea  seems  to  be  that 
the  title  is  "  absolute  "  but  defeasible  by  abandonment  of  res- 
idence on  the  premises,  so  that  the  occupying  widow  and 
minor  may  sell  it,  despite  the  adult  heir,  and  give  full  title. 
Ordinarily  where,  on  the  death  of  the  husband  insolvent  and 

iQen.  Stat  of  Kansas,  39'^,  cited  by  the  court 


632  THE    WIDOW'8    HOMESTEAD. 

childless,  the  homestead  vests  absolutely  in  the  widow,  she 
can  convey  title  to  a  purchaser.'  It  seems  needless  to  say  that 
she  can  sell  and  convey  only  what  she  owns.  When  the  title 
of  the  decedent  vests  in  his  heirs  immediately  upon  his  death, 
she  cannot  divest  them  by  any  act  of  hers.  When  it  vests  in 
them  and  her,  she  cannot  divest  them  of  their  property  right 
and  interest  though  she  may  sell  her  own.  She  cannot  have 
homestead  set  apart  to  her  from  property  which  has  vested  in 
the  heirs.-  She  cannot  sell  her  homestead  to  the  prejudice  of 
the  rights  of  minor  heirs,  or  those  of  creditors  entitled  to 
make  their  money  out  of  the  remainder.^  A  purchaser  of  a 
homestead  sold  by  order  of  court,  on  the  application  of  the 
w^dow,  is  not  deemed  to  have  had  notice  that  the  decedent 
w^as  free  from  debt,  when  there  was  no  record  evidence  of  it. 
Tie  is  not  presumed  to  know  that  the  judgment  was  void.  In 
such  case  it  is  only  voidable.^  Though  a  widow  give  a  quit- 
claim deed  of  her  late  husband's  separate  property,  it  is  said 
that  she  may  yet  have  homestead  set  apart  to  her  in  the  same 
property  b}^  the  probate  court.^ 

A  man  and  wife  gave  a  deed  of  trust  on  their  homestead. 
Ejectment  against  her,  when  she  had  become  a  widow,  was 
brought  by  the  grantee  for  the  recovery  of  the  property 
deeded,  which  she  held  as  her  homestead.  The  court  found 
the  fee  to  be  in  the  plaintiff  subject  to  her  right  of  homestead 
during  the  minority  of  her  youngest  child.  At  the  termina- 
tion of  this  period,  he  again  brought  ejectment,  and  the  first 
judgment  was  pleaded  as  a  bar  to  her  further  claim.    But  the 

1  Rainey  v.  Chambers,  56  Tex.  17.  set  apart  from  the  shares  of  those 
See  Alabama  act  of  February,  1876,  heirs ;  and  the  sale  of  property  of 
giving  widow  absolute  title  to  the  theirs  set  apart  thus  illegally,  made 
homestead  when  the  estate  of  her  by  the  widow,  would  convey  no  in- 
deceased  husband  has  been  declared  terest  but  her  own.  Madden  v.  Jones, 
insolvent.      McDonald   v.    Berry,   90  75  Ga.  680. 

Ala.  464.     And  see  Norton  v.  Norton  *  Whittle  v.  Samuels,  54  Ga.  548. 

(Ala.),  10  So.  436,  in  which  it  is  held  *  Deyton  v.  Bell,  81  Ga.  370. 

that  the  widow's  rights  of  quarantine  ^  Estate  of  Moore,  57  Cal.  437.   Com- 

and   homestead  are  personal  rights,  pare  Bates   v.  Bates,  97   Mass.  392. 

forfeitable  but  not  alienable.     These  See  Morrison  v.  Wilson,  30  Cal.  344 

rights  are  when  the  estate  is  solvent.  McDonald  v.  Edmonds.  44  Cal.  328 

2  In  Georgia,  when  the  title  of  a  M'Crakin  v.  Wright.  14  Johns.  193 
decedent  has  vested  in  his  heirs,  a  Etcheborne  v.  Auzerais,  45  Cal.  121. 
homestead  for  the  widow  cannot  be 


UKt.ATlV?:    TO    ALIENATION.  633 

court  now  ignored  the  first  finding,  declaring  it  a  nullity  be- 
cause not  involved  in  the  issue  then  joined.  Her  right  of 
occupancy  was  still  maintained.' 

Under  laws  giving  the  widow  only  the  usufruct  of  her  home- 
stead with  right  of  occupancy,  obviously  she  cannot  sell  the 
realty  which  she  enjoys.  An  attempt  to  sell,  or  rather  a  form 
of  sale  and  transfer  under  the  circumstances,  would  convey 
no  title  to  the  purchaser;  and,  under  some  statutes,  would  be 
deemed  abandonment  so  as  to  expose  the  property  to  forced 
sale  by  creditors.^ 

A  childless  wife,  surviving  her  husband,  is  entitled  to  have 
her  homestead  free  from  forced  sale  while  she  lives  upon  it. 
She  mav  exchange  it  for  another,  and  have  the  second  pro- 
tected, if  she  sell  the  first  for  money  to  be  invested  in  a  new 
home,  the  price  before  payment  to  her  cannot  be  garnished  in 
the  purchaser's  hands  for  the  payment  of  debts.' 

If  the  homestead  may  be  mortgaged  by  the  joint  act  of  the 
owner's  widow  and  his  administrator,  nothing  more  of  the 
decedent's  estate  can  be  affected  ;  and  the  mortgage  must  be 
confined  to  the  amount  and  value  of  land  prescribed  by  law  as 
the  exempt  portion.  If  any  wrong  is  done,  only  the  heirs  have 
interest  to  complain.*  Should  the  husband  and  Avife  join  in 
mort^affine:  land  including  their  homestead,  the  lien  would 
attach  to  the  whole ;  but  a  widow  does  not  waive  her  right  to 
the  proceeds  by  consenting  that  the  administrator  of  her  hus- 
band's estate  may  sell  land  in  which  she  has  a  homestead 
right.'^ 

A  widow  who  occupied  a  homestead  with  her  children  gave 
a  trust  deed  of  it  to  secure  a  creditor.  The  property  was  sold, 
and  the  purchaser  brought  an  action  of  trespass  against  her 

J  Yeates  v.  Briggs,  95  111.  79.     The  5  /„  re  Worcester's  Estate,  60  Vt 

deed   of   trust  was   given  while  the  420;  Goodenough   v.  Fellows,  53  Vt. 

homestead   acts  of   1851-7   were  in  108;  Probate  Court  v.  Winch,  57  Vt, 

force  in  Illinois.  282 ;    Lamb   v.   Mason,    50  Vt.    345 ; 

2  Garabaldi  v.  Jones,  48  Ark.  230 ;  Deverest  v.  Fairbanks,  50  Vt  700 : 
Gates  V.  Steele,  48  Ark.  539  (case  of  a  Day  v.  Adams,  42  Vt.  516.  In  Ver- 
lease).  In  Illinois,  sale  of  her  home-  mont,  an  administrator,  with  the  con- 
stead  by  the  widow  is  not  abandon-  sent  of  the  guardian,  may  liave  pos- 
raent.  Plummer  v.  White,  101  111.  session  of  the  homestead  in  which  a 
474.  ward  has  an  interest    Farr  v.  Put- 

3  Watkins  v.  Davis,  61  Tex.  414.  nam,  60  Vt  54. 

4  Griffin  v.  Johnson.  37  Mich.  87. 


634  TUE  widow's  homestead. 

to  test  the  title.  If  slie  was  sole  owner,  she  conveyed  by  the 
deed;  if  partner  in  comraanity  with  the  children,  the  deed 
conveyed  her  interest,  and  the  purchaser  obtained  equal  title 
and  possessory  right  with  the  children.' 

§  8.  Money  or  Realty  in  Lieu  of  Homestead. 

Under  a  statute  providing  that  a  widow  may  have  life  es- 
tate in  a  homestead  not  exceeding  a  thousand  dollars  in  value, 
out  of  her  husband's  estate,  if  occupied  by  her,  but  which 
makes  no  provision  for  the  sale  of  it  for  her  benefit  even 
when  it  is  a  part  of  other  property  and  the  whole  is  indivis- 
ible," it  was  held  that  she  is  entitled  to  this  homestead  though 
she  may  own  other  real  estate  in  her  own  right ;  that  prop- 
erty deeded  to  her  by  her  husband  cannot  be  estimated  in 
fixing  the  value  of  her  homestead  out  of  the  realty  of  which 
he  died  possessed  so  as  to  lessen  her  allowance;  that  at  her 
instance,  sale  of  the  homestead  wnth  other  inseparable  realty 
was  rightly  made,  without  express  statutory  warrant,  as  there 
was  no  objection  by  any  interested  party ;  but  that  she  was 
not  absolutely  entitled  to  a  thousand  dollars  of  the  proceeds  — 
only  to  the  interest  or  usufruct  of  it  during  her  life.  The 
fact  that  she  had  moved  away  from  the  homestead  to  her  own 
property,  leaving  the  former  with  a  tenant,  was  not  treated 
as  abandonment,  as  she  subsequently  returned  to  it. 

Reo'ardinof  the  sale  the  court  said:  "It  is  true  the  home- 
stead  is  only  for  the  use  of  the  widow  so  long  as  she  occupies 
it,  and  no  express  provision  is  made  for  the  sale  of  it  for  her 
benefit.  And,  on  the  other  hand,  if  it  is  not  divisible,  how- 
ever valuable,  the  law  makes  no  provision  for  the  sale  of  it, 
except  subject  to  her  right  of  occupancy,  even  for  the  pay- 
ment of  debts  against  the  estate  of  her  deceased  husband. 
If,  therefore,  the  strict  letter  of  the  law  is  adhered  to,  cases 
of  extreme  hardship  to  creditors  and  heirs,  as  well  as  to  the 
widow,  may  arise,  requiring  relief  by  courts  of  equity.  .  .  . 
[The  heirs  at  law]  having  consented  to  a  judgment  for  the  sale 
which  the  court  had  no  authority  to  render  without,  [they] 
cannot  be  heard  in  this  court  to  object  to  the  payment  to  [the 
widow]  the  value  of  her  homestead  exemption  out  of  the 

1  Grothaus  v.  De  Lopez,  57  Tex.  670.     §§  9-14.    See  Gen.  Stat.  1888,  pp.  574- 

2  Gen.    Stat.    Ky.,   ch.    38,    art.    13,     578. 


MONEY    OK   KEALTY    IN    LIEU    OF    HOMESTEAD.  635 

money  arising  from  the  sale,"  to  which  she  would  have  the  use 
for  life,  as  above  stated,  upon  giving  bond,  with  security,  for 
the  principal.^ 

Bond  and  security  are  not  necessary,  however,  when  there 
is  no  one  to  whom  the  principal  will  descend  at  her  death. 
An  act  "to  provide  a  homestead  for  the  widow  and  children 
of  deceased  ])ersons,"  -  which  was  a  charitable  ])rovision  tor 
necessitous  widows  and  orj)hans  (in  this  resj)cct  unlike  the 
statute  above  considered),  gave  the  widow  only  the  usufruct  . 
of  a  thousand  dollars'  worth  of  realty  or  its  equivalent  in 
money.  Nothing  was  said  about  her  giving  security,  but  the 
courts  required  it  so  as  to  make  the  act  conform  to  stat- 
utes in  ]}ari  inateria^  which  suj'tported  the  general  rule  that 
usufructuaries  must  give  security.  But,  the  object  of  the  rule 
being  the  protection  of  those  entitled  to  the  remainder  on  the 
termination  of  the  life  tenure,  it  manifestly  should  not  be  in- 
voked when  there  are  no  persons  to  be  secured.  A  widow, 
being  placed  on  the  tableau  of  the  administrator  of  her  hus- 
band's estate  as  a  creditor  for  a  thousand  dollars,  under  the 
above  entitled  act,  and  being  required  to  give  security,  filed 
her  opposition  and  claimed  the  amount  free  from  the  require- 
ment. There  were  no  minor  children  by  a  previous  marriage 
of  her  late  husband  to  whom  the  money  would  have  gone  on 
the  cessation  of  the  usufruct.  Major  heirs  of  the  deceased 
had  no  ultimate  rights  to  the  monej^,  under  the  act.  The  pro- 
vision is  a  charitable  one,  and  the  act  does  not  contemplate 
its  return  to  the  estate  or  succession,  after  the  death  of  the 
widow.  The  act  gives  it  to  the  widow  and  minor  children; 
the  usufruct  to  her  and  the  ownership  to  them.  If  they  are 
non  est,  it  is  held  that  she  alone  takes.  Deciding  upon  the 
opposition  above  mentioned,  the  court  said:  "  In  the  instant 
case  there  is  no  one  to  whom  the  money  descends,  and  as  the 
law,  in  its  humane  provisions,  intended  to  provide  for  the 
destitute  out  of  the  fund  of  the  succession,  it  is  not  unreason- 
able to  interpret  it  to  mean  that  when  it  provided  for  the 
widow  and  the  minor,  that  its  intention  was  that  in  the  ab- 
sence of  the  minors  it  should  go  to  the  v.'idow  to  enjoy  the 

1  Sansberiy  v.  Simms,  79  Ky.  537 ;        2  La.  Rev.  Stat,  §  2885. 
Phipps  V.  Actou,  12  Bush.  377 ;  Haus-        s  Suc.  of  Tassin,  12  La  Ann.  885. 
ford  V.  Holdam,  14  Bush,  210. 


636  THE  widow's  homestead. 

whole  amount.  But  as  there  is  no  one  to  whom  the  amount 
descends,  it  would  be  an  idle  thing  for  the  widow  to  give 
security  for  its  return  to  an  imaginary  claimant  who  can  never 
appear." ' 

It  is  not  usual  to  bestow  the  homestead  privilege  on  wid- 
ows only  in  case  of  their  need ;  but  there  is  an  exceptional 
limitation  of  that  kind,  by  which  widows  who  have  property, 
in  their  own  right,  sufficient  to  support  them,  are  denied 
homestead  provision  from  their  deceased  husbands'  estates.^ 

When  an  allowance,  instead  of  homestead,  had  been  made 
for  a  widow,  and  she  had  claimed  a  balance  of  it  twenty-five 
years  after,  her  demand  was  rejected  as  that  of  a  stale  claim. 
An  agreement  by  which  she  had  consented  to  appropriate  as- 
sets in  her  hands  in  lieu  of  the  allowance  was  pleaded  in  op- 
position to  her  claim ;  and  the  court  held  it  a  good  defense.* 

In  a  partition,  if  the  widow's  homestead  cannot  be  set  off 
so  that  she  can  enjoy  it  or  its  usufruct  for  life ;  and  she  is  paid 
in  money  instead  of  land,  she  is  not  entitled  to  receive  the 
value  of  the  homestead,  but  only  the  value  of  her  right  in  it. 
That  is  to  say,  if  a  thousand  dollars'  worth  of  realty  is  exempt, 
the  life  interest  in  it  should  be  ascertained  and  paid  to  her, 
or  the  whole  sum  should  be  invested,  and  the  interest  or  in- 
come of  it  should  be  paid  to  her  during  her  life-time.^ 

§  9.  In  General. 

A  widow's  petition  for  allotment  of  homestead  may  be  con- 
tested by  any  one  setting  up  an  adverse  interest.  The  object 
of  the  petition  is  to  have  her  homestead  set  apart  from  the 
realty  that  is  subject  to  administration.  No  title  is  involved. 
A  mortgagee  cannot  appear  in  the  contest  to  have  the  rank 
antl  validity  of  his  mortgage  adjudicated  against  the  widow's 
claim.  He  cannot  do  it  either  in  the  probate  or  in  the  circuit 
court.'^     If  a  widow  die  without  claiming  homestead  in  her 

>  Welsh  V.  V^elsh,   41  La.  Ann.  717.  1G6 ;  Succession  of  Robertson,  28  La. 

5fee  Corner  V.  Bourg,  26  La.  Ann.  615.  Ann.  832;   Murphy   v.  Rulh,  24  La. 

■^Tliis  rule  in  Louisiana.    Succes-  Ann.  74. 
sion  of  Marc,  29  La.  Ann.  41  ;  Succes-        ^  Tiebout  v.  Millican.  61  Tex.  514. 
sion  of  Cottingham,  29  La.  Ann.  669 ;        *  Stunz  v.  Stunz,  131  111.  210. 
Bryant  v.   Lyons,    29  La,   Ann.  64;        5  Coffey  v.  Joseph,  74  Ala.  271 ;  Ala. 

Succession  of  Drum,  26  La.  Ann.  539 ;  Code,  §  2841. 
Succession  of   Cooley,  26   La.    Ann. 


IN   GENERAL.  637 

husband's  estate,  her  executor  cannot  claim  it  for  lier.'  She 
must  claim  personally  and  within  reasonable  time.-  In  a  state 
where  the  quantitative  limitation  had  been  extended  from 
eighty  to  one  hundred  and  twenty  acr-es,  it  was  held  that  the 
widow  must  make  selection  of  the  allowed  portion  when  the 
home  property  that  had  been  occupied  by  her  husband  was 
in  excess  of  the  limit,  if  she  would  save  her  homestead  from 
a  debt  of  her  husband  contracted  before  the  change  in  the 
law.' 

In  an  application  of  the  widow  of  a  homestead  holder  to 
have  it  allotted  to  her,  the  title  by  which  her  husband  held  is 
not  drawn  in  question,  nor  is  the  indebtedness  of  the  estate 
any  obstacle.'*  If  she  ask  for  other  lands  in  lieu  of  the  home- 
stead after  they  have  been  decreed  to  be  sold  for  the  deced- 
ent's debts,  it  is  held  questionable  whether  she  would  be  too 
late.^  The  law  governing  when  her  husband  died  fixes  the 
widow's  homestead  rights.*'  As  to  debts,  the  law  governing 
when  they  were  contracted  must  determine  whether  the 
homestead  is  exempt  from  them  when  it  has  passed  to  the 
widow.  Exemption  can  be  claimed  only  in  realty  in  which 
the  deceased  had  any  interest  that  might  be  applied  by  the 
administrator  to  the  payment  of  his  debts,  if  not  exempt.' 
Liens,  or  property  debts,  or  any  liabilities  of  the  homestead 
existing  during  the  life-time  of  the  husband-owner,  are  not 
canceled  or  removed  by  the  descent  of  the  homestead  to  his 
widow  and  children,  who  can  take  no  greater  estate  than  he 
had  when  he  died.  The  homestead  continues  subject  to  all 
its  former  liabilities.^     It  must  ever  be  borne  in  mind  that 

'  Machemer's   Estate,    140  Pa.   St  1872,  took  the  estate  owned  by  her 

544.  deceased  husband  in  the  homestead. 

2  Burke  v.  Gleason,  46  Pa.  St.  297.  Register  v.  Heusley,  70  Mo.  189 :  Da- 

5  Clancy  v.   Stephens,   92  Ala.  577.  vidson  v.  Davis,   86  Mo.  440 ;  Daudt 

It  is  added  that  if  the  widow  be  in-  v.  Musick,  0  Mo.  App.  169;  Skouteu 

sane  she  cannot  make  the  selection.  v.  Wood,  57  Mo.    380 ;    Rottenberry 

*  Cox  V.  Bridges,  84  Ala.  553 ;  Cof-  v.  Pipes,  53  Ala.  447 ;  Taylor  v.  Tay- 

fey  V.  Joseph,  74  Ala.  271.  lor,  53  Ala  135 ;  Taylor  v.  Pettus,  52 

5  Seals  V.  Pheiflfer,  84  Ala.  359.  Ala.  287 ;  Sluder  v.  Rogers,  64  N.  C. 
{See    same    parties,    77    Ala.     278.)  289. 

Toenes  v.  Moog,  78  Ala.  558 ;  Ran-  ■  Boiling  v.  Jones,  67  Ala.  508. 

dolph  V.  Little,  62  Ala.  396.  8  McAllister  v.  White  (Vt.).  22  A. 

6  Burgess  v.  Bowles,  99  Mo.  543.  602.  Ross,  J. :  "  Upon  the  agreed 
So  a  widow,  whose  husband  died  in  case  the  debt  due  from  the  estate  to 


638 


Tin-:  WIDOW  s  iiompzstead. 


homestead  exemption  has  bearing  only  on  the  personal  debts 
of  the  property-owner,  and  not  upon  his  property  debts;  that 
is,  not  upon  those  which  may  be  enforced  specifically  against 
the  property  itself.     It  is  the  personal  debts,  contracted  after 


M.  B.  Hall  was  contracted  befon-^  the 
intestate  purchased  the  claimed 
homestead.  It  is  conceded  that  Mr. 
Hall  would  have  had  the  right  to 
take  the  claimed  homestead  to  sat- 
isfy his  debt  at  any  time  during  the 
Mfe  of  the  intestate.  But  it  is  con- 
tended that  the  right  expired  with 
the  death  of  the  intestate,  and  that 
his  widow,  the  appellant,  has  the 
right  to  the  homestead  against  the 
debt  of  Mr.  Hall.  This  is  the  only 
question  for  consideration.  A  home- 
stead exemption  was  fii'st  given  in 
1850.  Comp.  St.,  p.  390,  §  4.  This 
section  read :  '  If  any  such  house- 
keeper or  head  of  a  family  shall  de- 
cease leaving  a  widow,  his  home- 
stead, of  the  value  aforesaid,  shall 
wholly  pass  to  his  widow  and  chil- 
dren, if  any  there  be,  in  due  course 
of  descent,  without  being  subject  to 
the  payment  of  the  debts  of  the 
deceased,  unless  made  specially 
chargeable  thereon,'  etc.  Another 
section  of  the  act  made  the  home- 
stead subject  to  attachment  and  ex- 
ecution upon  all  contracts,  matters 
and  causes  of  action  which  might  ac- 
crue previous  to  or  at  the  time  of  ac- 
quiring the  homestead.  Under  this 
act  the  question  arose  in  regard  to 
the  meaning  of  '  without  being  sub- 
ject to  the  payment  of  the  debts  of 
the  deceased,  vinless  made  specially 
chargeable  thereon.'  It  was  held  in 
Simouds  v.  Estate  of  Bowers,  28  Vt. 
354,  decided  in  1856,  Bennett,  J.,  de- 
livering the  opinion,  and  in  Perrin  v. 
Sargeant,  33  Vt.  84,  decided  in  1860, 
Poland,  J.,  delivering  the  opinion, 
that  the  homestead  of  a  deceased 
person  was  holden  and  liable  for  the 
same  debts  which  it  was  before  his 


decease.  Various  changes  were  made 
in  reference  to  the  interest  of  the 
children  in  such  homestead,  but  with 
reference  to  the  debts  for  the  pay- 
ment of  which  it  could  be  taken  the 
statute  remained  unchanged  until 
the  General  Statutes  took  effect  in 
1863.  The  phraseology  of  section  4 
of  the  act  of  1850,  last  quoted,  was 
then  changed  so  that  it  read  :  '  With- 
out being  subject  to  the  payment  of 
the  debts  of  the  deceased,  unless  le- 
gally charged  thereon  in  his  life- 
time; and  such  widow  and  children 
respectively  shall  take  the  same  es- 
tate therein  of  which  the  deceased 
died  seised,'  etc.  This  is  the  language 
of  the  law  now  in  force  on  this 
branch  of  the  subject.  K.  L.,  §  1898. 
The  appellant  contends  that  this 
change  in  the  language  of  the  stat- 
ute manifests  an  intention  on  the 
part  of  the  legislature  to  change  the 
law  upon  this  subject,  and  that  '  le- 
gally charged  thereon  in  his  life- 
time '  means  that  the  creditor  who 
has  the  right  to  take  the  homestead 
in  satisfaction  of  his  debt  during  the 
life  of  the  husband  must  during  that 
time  do  some  act  legally  to  take  it  in 
such  satisfaction,  and,  if  the  creditor 
fails  to  perform  such  act  before  the 
decease  of  the  husband,  the  widow 
takes  the  homestead  freed  from  lia- 
bility to  pay  his  debt.  The  appellant 
urges  that  force  should  be  given  ta 
the  clause  '  in  her  life-time ; '  that  at 
the  decease  of  the  husband  all  right 
to  charge  the  debt  upon  the  home- 
stead ceases.  It  is  apparent  that  at 
his  decease,  under  the  act  of  1850,  all 
right  to  make  the  debt  specially 
chargeable  ceased.  The  language 
there  used,  '  made  specially  charge- 


IN    GENKRAT^ 


639 


notice  to  the  creditor  that  the  homestead  is  not  to  stand  as 
security,  which  are  affected  by  the  statutory  exemption.  And 
the  homestead,  descending  to  the  widow  and  heirs  in  the 
same  condition  in  which  the  former  owner  held  it,  remains 
liable  for  liens  (property  debts),  but  free  from  the  merely 
personal  debts  of  the  decedent  which  were  contracted  after 
notice  to  creditors. 

A  purchaser  of  title  warranted,  subse,juently  evicted  by  the 
holder  of  a  i)aramount  title,  is  the  creditor  of  the  vendor  for 
the  price  paid,  and  may  recover  it  with  damages  from  the 
date  of  purchase;  and  he  is  not  to  be  hindered  by  the  inter- 
vention of  the  vendor's  widow's  homestead  claim.  A  statute 
favoring  her,  passed  after  the  date  of  the  deed,  but  before  the 
purchaser's  eviction,  will  not  avail  her,^ 

The  monetary  limit  of  the  homestead  having  been  reduced 


able,'  apparently  imported  that  the 
creditor  had  done  or  should  do  some- 
thing in  the  direction  of  making  the 
homestead  holden  for  the  payment 
of  his  debt  before  the  homestead 
vested  in  the  widow  and  children. 
The  language,  '  legally  charged '  and 
'made  specially  chargeable,'  are  of 
quite  similar  legal  import  or  signifi- 
cation. Both  clauses  are  to  be  read 
keeping  in  view  both  the  language 
which  precedes  and  follows.  Both 
clauses  are  preceded  by  the  state- 
ment that  the  homestead  shall  vest 
'without  being  subject  to  the  pay- 
ment of  the  debts  of  the  deceased.' 
This  refers  to  a  payment  to  be  made 
after  the  decease  of  the  husband. 
The  clause  commencing  with  '  un- 
less' states  what  debts  it  may  be 
taken  in  payment  of.  '  Unless ' 
here  is  the  equivalent  of  'except' 
The  decisions  in  28  Vt.  and  33  Vt. 
hold  that  the  language  of  the  act  of 
1850  means  no  more  than  that  the 
homestead  should  remain  liable  for 
the  payment  of  the  same  debts  after 
it  descended  to  the  widow  and  chil- 
dren that  it  was  liable  for  when  the 
title  stood  in  the  husband.     We  think 


tlie  change  in  the  phraseology  of  this 
provision  in  the  General  Laws  of 
18G3  did  not  intend  to  change  the 
settled  law  on  this  subject  It  is  fol- 
lowed by  the  declaration  that  the 
widow  and  children  shall  take  the 
same  estate  of  which  the  deceased 
died  seised.  The  deceased  died  seised 
of  the  homestead  premises,  subject  to 
the  right  of  Mr.  Hall  to  take  them  in 
payment  of  his  debt  This  language, 
while  it  may  also  have  reference  to 
the  particular  estate,  either  legal  or 
equitable,  held  by  the  husband,  has 
reference  to  the  extent  to  which  it 
shall  be  free  from  the  payment  of 
his  debts ;  for  that  was  the  subject- 
matter  under  consideration.  The 
change  in  the  language  used,  in  ref- 
erence to  this  subject,  in  Gen.  St. 
1863,  does  not,  to  our  minds,  mani- 
fest any  clear  intention  of  the  legis- 
lature to  change  the  law.  The  judg- 
ment is  reversed,  and  judgment  ren- 
dered, with  costs,  that  the  defendant 
is  not  entitled  to  a  homestead  in  the 
premises  against  the  debt  due  Mr. 
Hall.  Judgment  ordered  to  be  certi- 
fied in  the  probate  court" 

1  Corr  v.  Shackelford,  68  Ala.  241. 


640  THE    widow's     IIOMKSTKAI). 

by  a  new  constitution  to  one  thousand  dollars  of  realty,  a 
widow  applied  for  one  of  double  that  value,  as  was  ])ermissi- 
ble  under  the  old  constitution.  Under  a  saving  clause  of  the 
new  instrument,  and  under  the  circumstances  of  the  case 
which  brought  her  within  it,  she  was  allowed  two  thousand 
dollars  of  realty.^ 

A  widow  was  deemed  both  a  beneficiary^  and  a  qua.n-trustee 
when  she  had  applied  for  homestead  for  herself  and  minors, 
to  be  set  apart  out  of  the  estate  of  the  deceased  husband  and 
father:  so  the  homestead  estate  was  not  extinguished  by  the 
minors  becoming  of  age,  but  continued  during  her  wddow- 
hood.2 

By  some  provisions,  the  husband's  homestead  passes  intact 
to  his  widow  and  minor  children  at  his  death,  to  be  for  their 
benefit  during  the  time  of  its  further  exemption,^  and  is  not 
allotted  out  of  his  estate  in  general,  unless  that  is  good  reason 
for  assigning  other  realty  to  the  widow  in  lieu  of  it.*  Where 
her  homestead  is  derived  only  from  the  husband's,  she  cannot 
have  one  created  out  of  his  general  real  estate  when  he  has 
died  without  having  created  one.'^  As  against  his  heirs,  she  is 
entitled  to  none,  unless  she  claimed  one  as  his  wife  during  his 
life-time,  though  he  died  without  children  and  without  debts." 
But  the  contrary  rule  has  authority  to  support  it,  and  perhaps 
equal  reason:  The  failure  of  a  husband  to  have  a  homestead 
allotted  is  no  detriment  to  his  widow's  right  to  have  it  done, 
when  she  has  none  of  her  ow' n.^  However,  it  has  been  held, 
under  constitutional  provision,  that  this  is  only  when  her  hus- 
band has  left  no  children.^     A  widower  with  children  can 

'  Gerding    v.   Beall,    63    Ga.    561 ;  and  the  estate  is  worth  no  more  than 

Georgia  Constitutions  of    1868    and  $300,  the  whole  vests  absolutely  in 

1877.  the  widow.     Const,   of  Ark.,  ix,   6; 

2  Groover  v.  Brown,  69  Ga.  60.  Mansf.  Dig.,  §  3;  Sansom  v.  Harrell, 

3  Hendrix  v.  Hendrix,  46  Tex.  8 ;  51  Ark.  429. 

Rogers  v.  Ragland,  42  Tex.  444 ;  Sos-  ^  Helm  v.  Helm's  Adm'r,  30  Gratt. 

saman  v.  Powell,  21  Tex,  665.  404,  distinguishing  Hatorff  v.  Well- 

*  McAllister  v.  Farley,  39  Tex.  561.  ford,  27  Gratt  356 ;  Kemp  v.  Kemp. 

Compare  Ragland  v.  Rogers,  34  Tex.  42  Ga.  523.    See  Hager  v.  Nixon,  69 

622 ;  overruled  m  42  Tex.  444  ;  Mabry  N.  C.  108. 

v.  Harrison,  44  Tex.  286.  •?  Smith  v.  McDonald,  95  N.  C.  163; 

5  Johnson  v.  Turner,   29  Ark.  280;  Branch,  Ex  parte,  72  N.  C.  106. 

Hoback  v.  Hoback,  33  Ark.  399.     In  » Saylor  v.    Powell,   90  N.   C.  202 ; 

Arkansas,  if  there  are  no  children,  Wharton  v.  Leggett,  80  N.  C.  169 ; 


IN    GENKKAL.  041 

create  and  retain  homestead  only  while  they  arc  minors; '  but 
this  is  not  a  general  rule  as  to  retention. 

The  homestead  benefit  accorded  to  a  widow  is  not  a  char- 
ity bestowed  only  upon  the  needy,  in  most  of  the  states. 
Whatever  her  wealth  in  her  own  riglit,  tho  law  gives  her 
homestead  in  her  deceased  husband's  estate,  to  be  hers  so  lons" 
as  she  may  occupy  it  personally,  or  (in  some  states)  merely 
possess  it  by  an  agent  or  a  tenant;  and  propei-ty  given  to 
her  by  her  husband  before  his  death,  or  acquired  by  her  from 
any  source,  does  not  affect  her  right  to  homestead.-  She  can- 
not have  homestead  out  of  land  derived  from  her  husband,  if 
she  already  has  one  in  her  own  right.  But  the  fact  that  she 
owns  land  in  her  own  right  does  not  interfere.' 

Children,  permanently  residing  in  another  state  from  that 
in  which  their  mother  claims  homestead  as  the  head  of  a  fam- 
ily, are  not  deemed  to  compose  her  family  in  the  sense  of  a 
household  entitled  to  the  homestead  protection.*  Children, 
however,  are  not  everywhere  essential  accompaniments  to  a 
widow's  application.^  They  may  be  impediments."  The  adop- 
tion of  a  child  has  been  held  to  give  her  no  additional  riffht ' 
She,  when  living  without  a  family,  does  not  continue  to  enjoy 
the  exemption  privilege  as  the  head  of  a  household  which  no 
longer  exists.     She  is  thus  privileged  in  another  capacity. 

Const.  N.  C,  art.   10,  sec.  5 ;  Acts  of  ried   woman    is    entitled    to    home- 

1877,  ch.  253.     Declared  contrary  to  stead  in  her  husband's  estate  but  not 

constitution.    Wharton  v.  Taylor,  88  in  her  own.  So,  there  (Gove  v.  Camp- 

N.  C.  230.  bell,  63  N.  H.  401),  if  a  husband  with- 

1  Santa  Cruz  Bank  v.  Cooper,  56Cal.  out  valuable  consideration  pays  part 

339.  of  the  price  of  real  estate  conveyed 

2Sansberry  v.   Simms'   Adm'x,  79  to  his  wife  without  fraud  on  her  part, 

Ky.  527.      But  in  Louisiana  the  wid-  his  creditors  can  levy  only  on  his  in- 

ow's  need  is  the  occasion  of  assign-  terest   subject   to   the    wife's   home- 

ing  her  homestead  out  of  her  hus-  stead  right  in  it.     76.     The  widow's 

band's  estate.  dower  and  homestead  estate  are  in- 

3  In  South  Carolina,  after  the  widow  eluded  in  half  of  the  real  estate  of 

is  admitted  to  be  entitled   to  both  her  husband  whicJi  she  takes  with 

homestead  and  dower,  she  cannot  be  fee-simple  title.     Gen.  Stat,  ch.  183. 

denied  the  latter  because  she  owns  §8:  Burt  v.  Randlett,  59  N.  H.  130. 
land  in  her  own  right.     Jefferies  v.        *  Rock  v.  Haas,  1 10  111.  528. 
Allen,  29  S.  C.  501  ;  Ilosford  V.  Wj^nn,         &  Estate   of  Walley.    11    Nev.   260; 

22  S.  C.  311 ;  Bradley  v.  Rodelsperger,  Moore  v.  Parker,  13  S.  C.  486. 
17  S.  C.  11 ;  Moore  v.  Parker,  13  S.  C.        esaylor  v.  Powell,  90  N.  C.  202. 
489.     In     New  Hampshire,    a  mar-        '  Re  Lambson,  2  Hughes,  333. 
41 


642  THE  widow's  homestead. 

The  homestead  of  her  husband  does  not  devolve  upon  her  as 
the  head  of  the  family,  but  as  his  widow  eo  nomine} 

The  widow  and  children  of  a  debtor  owing  more  than  his 
estate  is  worth  take  the  estate  subject  to  the  liens  and  equi- 
ties existing  against  it.  Her  declaration  of  homestead  for 
herself,  and  as  the  guardian  of  the  children,  does  not  relieve 
any  part  of  the  estate  from  liability  for  debts  contracted  by 
the  husband  and  due  from  him.^ 

iGuthman  v.   Guthman,   18  Neb.    76;    Speidel  v.  Sclilosser,  13  W.  Va 
98,  106;  Neb.  Com.  Stat,  ch.  36,  §  17.    686;  W.  Va.  Acts,   1872-3,  ch.  193, 
2  Reinhardt  v.  Keinhardt,  21 W.  Va.    §  10. 


CHAPTER  XXI. 

THE  CHILDREN'S  HOMESTEAD. 


§  1.  Tlie  Nature  of  the  Benefit. 

2.  Selection     after     tlie    Father's 

Death. 

3.  Minors  as  Litigants. 


§  4.  Rents  and  Profits. 

5.  Relative  to  Indebtedness. 

6.  Necessitous  Children. 

7.  Partition. 


§  1.  The  Nature  of  the  Benefit. 

The  minor  children  are  beneficiaries  of  the  homestead  pro- 
vision for  them;  they  are  vitally  interested  in  it;  but  they 
have  no  independent  rights  while  their  parents  live.  Their 
parents  may  dispose  of  the  homestead  at  pleasure,  may  sell 
it,  incumber  it  or  abandon  it.  Their  father,  when  he  is  the 
sole  owner,  may  make  any  disposition  of  it  after  the  death 
of  their  mother.  Their  widowed  mother  has  the  same  right 
when  she  is  the  sole  owner.  "Were  the  law  to  give  minor 
children  any  adverse  interest  to  be  asserted  against  their  par- 
ents who  own  the  property,  it  would  tend  rather  to  the  dis- 
ruption of  families  than  to  their  conservation,  and  thus  defeat 
the  very  purpose  of  homestead  legislation. 

Effect  of  the  father's  death:  When  the  children  become 
orphans,  the  effect  of  granting  them  direct  homestead  pro- 
tection tends  rather  to  the  preservation  of  the  family  than 
otherwise.  As  heirs  of  the  home  property,  they  share  alike 
with  their  adult  co-heirs :  but,  as  beneficiaries  of  the  home- 
stead provision,  they  have  what  resembles  an  estate  for  years, 
which  is  inalienable  by  them  or  by  creditors.  The  purpose, 
and  generally  the  effect,  of  conferring  this  benefit  upon  them, 
is  to  preserve  the  family,  keep  its  members  together,  and  thus 
promote  the  welfare  of  society  and  the  state.  Before  the 
death  of  the  father,  this  purpose  was  better  served  by  giving 
the  children  no  independent  rights:  now  it  is  advanced  by 
the  bestowal  of  such  rights  upon  them. 

The  homestead  privilege  of  the  father  does  not  necessarily 
descend  to  his  children.  His  title  to  the  property  is  inherited 
by  his  heirs,  both  minor  and  major,  while  the  exemption  priv- 


644  TOE    CHILDKEn's    nOMESTEAD. 

ilege  and  qttasi-esiate  for  years  of  the  minor  heirs  is  grafted 
on  the  fee  by  statute,^  with  the  assent  of  the  owner  by  dedi- 
cation. The  orphans  under  age  do  not  lose  tlie  benefit,  which 
they  enjoyed  with  their  father,  by  reason  of  his  death,^  though 
they  may  inherit  from  him  no  more  property  right  than  the 
adult  heirs  receive.  May  they  have  the  benefit  of  home  pro- 
tection during  minority  when  they  have  no  heirship  in  the 
decedent's  estate?  Some  statutes  confer  the  benefit  so  broadly 
as  to  include  step-children  when  the  legally-owning  family 
head  is  in  loco  parentis  to  them.^  Adopted  children  may  en- 
able an  owner,  who  is  without  other  family  members,  to  claim 
homestead  protection,*  but  it  cannot  be  laid  down  as  a  rule 
that  minor  members  of  a  decedent's  late  family,  who  are  not 
his  heirs,  are  entitled  to  homestead  protection  during  their 
minority,  to  the  postponement  of  partition  among  the  adult 
legal  heirs.  It  is  certain  that  when  the  parental  relation  does 
not  exist  either  naturally  or  by  adoption,  minor  children  can- 
not have  homestead  set  apart  to  them,  from  the  estate  of  de- 
cedent, simply  because  they  have  lived  with  him.^ 

The  mother'' s  control:  Upon  the  death  of  the  father  the 
mother  succeeds  to  the  headship  of  the  family;  but  since  the 
"estate"  of  the  minor  children  has  vested,  she  cannot  dispose 
of  their  interest  derived  from  their  father,  or  of  their  right 
of  occupancy  bestowed  by  law  with  his  assent.  She  cannot 
dispose  of  their  homestead  property;  she  cannot  sell  or  in- 
cumber it;*'  she  can  neither  waive  nor  abandon  it. ^  Should 
she  attempt  to  convey  their  home  by  deed  to  a  purchaser, 
they  may  maintain  their  occupancy  against  the  grantee.^  They 
may  eject  a  purchaser  who  has  come  into  possession,  though 
he  bought  on  the  foreclosure  of  a  mortgage  given  by  the 
widow. **     They,  having  inherited  their  home  property  from 

1  Shannon  v.   Gray,   59  Tex,   251;  6Rhorer  v.  Brockhage,  b6  Mo.  544 

Johnson  v.  Taylor,  43  Tex.  121.  (some  title,  15  Mo.  App,  16,  and  13  id. 

SHubbell  v.  Canaday,  58  111.  427;  397);   Rogers  v.  Mayes,  84  Mo.  520; 

Pardee  v.   Lindley,  31    111.   187;    i?e  White  v.  Samuels.  54  Ga.  548. 

Kennedy,  2  S.  C.  227 ;  Ex  parte '^ivo-  'Showers  v.   Robinson,   43   Mich, 

bel,  2  S.  C.  809 ;  Howze  v.  Howze,  2  502 ;  Roberts  v.  Ware,  80  Mo.  303 ; 

S.  C.  229.  Wagner's  Stat.,  p.  698,  g  5. 

3Capek  V.  Kropik,  139  111.  509.  ^  Id. 

*  Re  Sambson,  2  Hughes,  233.  SKockling  v.  Daniel,  82  Mo.  54. 

B  Estate  of  Romeo,  75  Cal.  879. 


SELECTION   AFTER   THE    FATIIEu's    DEATH.  645 

their  dccGcased  father,  and  having  had  the  home  clothed  by 
hiw  with  the  exempt  cliaracter.  cannot  bo  concluded  by  any 
act  of  their  mother.'  They  owe  her  filial  duty  and  must  follow 
her  when  she  removes  from  the  homestead;  but  though  she 
removes  permanently,  with  the  design  of  abandonment,  they 
will  not  thus  be  bereft  of  their  homestead  protection.-  That 
protection,  is  vouchsafed  to  them  till  the  end  of  their  minor- 
ity irres|)ectivo  of  the  mother's  right.  She  may  have  remar- 
ried and  lost  her  exemption  right  in  consequence,  according 
to  the  law  of  some  states ;  or  she  may  have  died  and  thus  lost 
it  —  yet  the  rights  of  the  minor  beneficiaries  will  not  be  af- 
fected.* Conversely,  the  widow's  right  does  not  depend  upon 
the  continuance  of  the  lives  of  the  children.^ 

The  mother,  however,  is  the  legal  representative  of  her 
fatherless  children,  and  as  such  she  may  conclude  them  in  lit- 
igation when  her  interests  and  theirs  are  not  adverse  and  she 
is  the  proper  party  to  appear  for  all.^  They  may  be  concluded 
as  privies,  by  her  action,  as  they  are  when  their  father  pleads 
his  homestead  in  litigation ;  ^  but,  as  before  remarked,  she 
cannot  conclude  them  by  waiver,  or  by  the  relinquishment  of 
her  own  rights,  unless  she  owns  the  property  in  her  own  right 
and  the  dedication  was  by  her,  so  that  she  has  the  position 
that  a  widower  has  over  his  own  homestead  property.  But  if 
the  homestead  was  carved  out  of  the  father's  property  after 
his  death,  she  cannot  alienate  it  to  the  prejudice  of  the  chil- 
dren.^ 

§  2.  Selection  after  the  Father's  Death. 

If  no  selection  has  been  made  by  the  decedent,  his  widow 
and  children  should  have  it  carved  out  of  the  real  estate  un- 
less the  whole  is  not  in  excess  of  the  exemption  quantity.^ 
If  their  portion  is  laid  out  by  appraisers,  it  should  be  shown 
by  a  report  duly  filed  of  record  and  passed  upon  by  the  court.' 

1  Miller  v.  Marckle,  27  III.  405.  •«  Gay  v.  Hanks,  81  Ky.  552. 

2  Watters  v.  The  People,  21  III.  178 ;  »  Burt  v.  Box,  30  Tex.  114. 
Harmon   v.    Bynum,   40    Tex.    324;  6  Tadlock  v.  Eccles,  20  Tex.  793. 
Johnson   v.   Turner,    29    Ark.    280 ;  f  Rotf  v.  Johnson,  40  Ga.  555. 
Rogers  v.  Mayes.  84  Mo.  520.  ^  Jarrell  v.  Payne,  75  Ala.  577. 

*  Loyd  V.  Loyd,  82  Ky.  521 ;  Canole        STuruipseed  v.  Fitzpatrick,  75  Ala. 
V.  Hurt,  78  Mo.  649 ;  Keyte  v.  Perry,     297. 
25    Mo.   App.   394;  Missouri  Home- 
stead Acts  of  1865  and  1874. 


64:6  THE  childken's  homestead. 

Assignment  to  a  widow  and  children  may  involve  no  ques- 
tion of  execution  and  sale ;  yet  if  the  decedent  was  involved  in 
debt,  and  creditors  aim  to  reach  his  real  estate  by  execution, 
the  appearance  of  regular  assignment  to  the  widow  and  chil- 
dren by  record  will  become  important. 

If  the  widow  and  children  take  possession  of  a  homestead 
and  all  the  estate  real  and  personal  of  the  decedent,  without 
administration,  and  the  property  exceeds,  in  value  and  extent, 
the  exemption  limit,  they  hold  it  as  a  trust  for  the  payment 
of  debts,  which  a  creditor  may  reach  by  bill  in  equity.'  When 
the  legal  title  is  in  the  trustee,  it  has  been  held  that  the  stat- 
ute of  limitations  runs  against  the  minor  cestui  que  trust  in 
favor  of  a  stranger.^ 

A  widow  filed  her  claim  for  homestead  exemption  within 
the  statutory  time  after  her  husband's  death.  An  appraise- 
ment was  had,  and  the  report  duly  filed  though  not  marked 
"  filed."  It  was  held  that  a  second  appraisement  three  years 
afterwards  w^as  not  too  late,  since  the  delay  had  not  worked 
to  the  prejudice  of  any  interested  party.^  Had  the  delay  been 
attributable  to  her,  and  been  productive  of  injury  to  others, 
the  ruling  would  probably  have  been  different.^ 

It  is  held  in  one  state  that,  no  homestead  having  been  al- 
lotted to  the  decedent,  and  dower  having  been  assigned  to  his 
widow,  there  can  be  no  homestead  set  apart  to  the  minor  chil- 
dren from  the  rest  of  the  estate.-'  But  when  homestead  had 
been  allotted  to  a  widow  by  a  justice  of  the  peace,  it  v;as  held 
by  the  supreme  court  that  the  rights  of  the  decedent's  chil- 
dren were  not  afifected  by  it  because  they  were  without  notice 
of  the  proceeding.® 

J  So  held  in  Alabama.  Cameron  v.  Burk  v.  Gleason,  46  Pa.  St.  297 ;  Van- 
Cameron,  82  Ala,  392,  citing  Dunlap  devort's  Appe;  1  43  Pa.  St.  4G3. 
V.  Newman,  47  Ala.  429 ;  Adams  v.  s  Graves  v.  Mines,  108  N.  C.  262 ;  13 
Holcombe,  1  Harper  Eq.  202;  S.  C,  S.  E.  15;  Gregory  v.  Ellis,  86  N.  C. 
14  Am.  Dec.  719;  Shannon  v.  Dillon,  579;  Watts  v.  Leggett,  66  N.  C.  197 ; 
8  B.  Mon.  389 ;  S.  C,  48  Am.  Dec.  394 ;  McAfee  v.  Bettis,  72  N.  C.  28 ;  Const. 
3  Pom.  Eq.,  i^  1154,  p.  119.  of  N.  C,  art.  10,  ^§  2,  3. 

2  Williams  v.  Otey,  8  Humph.  569;  6  Williams  v.  Whitaker  (N.  C),  14 

Smiley  v.  Biffle,  2  Barr,  52.  S.  E.  924.     In  North  Carolina,  as  to 

^In  re  Williams'  Estate  (Pa.),  21  the  law  assigning  dower  to  the  widow 

Atlan.  673.  and   allotting  liomestead   to    minor 

*  Kern's  Appeal,  120  Pa.  St.  523 ;  heirs,  see  Graves  v.  Hines,  108  N.  C. 


SELECTION    AFTER   THE    FATUER's    DEATH.  647 

Setting  apart  a  homestead  to  the  widow  and  minor  children 
may  not  be  necessary  when  the  residence  that  was  occupied 
by  the  husband  and  father  is  within  the  statutory  limitations 
as  to  both  extent  and  value.  Such  estate  vests  in  them  im- 
mediately upon  his  death. ^ 

If  action  of  commissioners  is  necessary,  and  application  of 
the  debtor  is  prevented  by  his  death,  the  widow  may  claim 
the  assignment  of  homestead,  or  the  reservation  of  its  value 
to  the  amount  of  the  monetary  lirait.^ 

An  allowance  in  lieu  of  homestead  has  been  accorded  to 
widows  and  minor  children  from  the  estates  of  husband-fathers 
who  left  no  homestead  distinct  from  their  other  realty.' 

J^eoessary parties:  The  widow  and  children  of  a  decedent 
are  necessary  parties  to  a  proceeding  for  setting  out  home- 
stead to  them  from  his  estate.*  Whosever  interest  is  to  be 
affected  is  a  necessary  party .^  But,  whether  minors  should  be 
made  parties,  in  an  application  for  leave  to  sell  the  homestead, 
may  depend  upon  the  question  whether  they  are  likely  to  suf- 
fer in  their  interests,  if  not  made  parties.  If  the  mother  is 
making  application,  and  her  interest  is  not  adverse  to  theirs, 
she  may  be  presumed  to  care  for  their  rights.^  But  children 
whose  homestead  rights  conflict  with  that  of  the  widow  should 
be  made  parties  in  any  litigation  affecting  their  interests,  if 
they  are  to  be  concluded.'' 

Two  debtors  gave  a  deed  of  trust,  on  land  which  they  owned 
jointly,  to  secure  their  debt.  Afterwards,  one  bought  the 
other's  interest.     Upon  his  death,  his  widow  claimed  home- 

262.     Affirms  Watts  v.   Leggett,   66  6 The  children  must  be  made  par- 

N.  C.  197 ;  McAfee  v.  Bettis,  72  N.  C.  ties,  in  Georgia,  when  the  guardian 

28;  Gregory  v.  Ellis,  86  N.  C.  579.  or  trustee  applies  for  leave  to  sell  the 

Aliens  are  not  entitled  to  homestead  homestead.     They  need  not  be  when 

in  North  Carolina.   Burgwyn  v.  Hall,  the  widow  is  the  applicant.     When 

108  N.  C.  489.  the  husband  applies,  the  wife  must 

1  Rogers  v.  Marsh,  73  Mo.  64.  join,     Dayton    v.   Bell,   81   Ga.   370. 

^  Manning  v.  Dove,  10  Rich.  408.  When  a  claim  for  a  homestead  is 

3  Terry  v.  Terry,  39  Tex.  310 ;  Moore  filed  by  the  head  of  a  family,  the 

V.  Owsley,  37  Tex.  603 ;  Ross  v.  Smith,  beneficiaries    are    parties   (King    v. 

44  Tex.  398.  Skellie,  79  Ga.  149),  though  not  for- 

*  Murphy  v.  De  France,  105  Mo.  53 ;  mally  so,  necessarily. 

15  S.  W.  949.  '  Griffie  v.  Macey,  58  Tex  310. 

5  Miller  v.  Schnebly  (Mo.),  15  S.  W. 
435 ;  Cloud  v.  Inhabitants  83  Mo.  357. 


G-tS  THE    CrilT.DREN  S    HOMESTEAD. 

stead  in  the  land.  She  was  allowed  only  to  have  right  to  her 
husband's  interest  at  the  date  of  the  deed,  and  to  improve- 
ments so  far  as  they  were  made  with  her  money.  In  an 
action  to  enforce  the  trust,  the  children  of  the  deceased  were 
necessary  parties.  The  equal  division  of  the  property  between 
the  creditor  and  the  widow,  saving  to  her  the  benelit  of  her 
money  put  into  the  improvements,  was  considered  just.  If 
this  was  not  practicable,  she  should  be  assigned  the  dwelling- 
house  for  herself  and  her  husband's  children  with  the  part  of 
the  land  on  which  it  was  situated,  reserving  their  right  to  the 
subsequent  adjustment  of  any  inequality,  while  the  rest  of  the 
land  should  be  sold  to  satisfy  the  debt  secured  by  the  trust 
deed.^ 

§  3.  Minors  as  Litigants. 

The  head  of  the  family  is  the  one  to  bring  suit  to  recover  a 
homestead  unless  there  are  good  reasons  to  show  why  another 
has  become  the  plaintiff  for  such  purpose.  Though  others  be 
beneficiaries,  they  should  not  usurp  the  position  of  their  head 
without  any  reason  assigned.^  A  widow  and  children  were 
allowed  to  proceed  by  bill  to  have  themselves  subrogated  to 
the  riofhts  of  the  deceased  husband  and  father  who  had  died 
pending  his  application  for  homestead,  and  during  litigation 
between  him  and  purchasers  at  a  judicial  sale  which  had  taken 
place  after  his  application.  The  bill  was  to  have  them  subro- 
gated, to  enforce  their  rights  to  the  homestead  and  to  compel 
the  purchasers  to  account  for  rents  and  profits.^ 

1  Id.  The  delivery  of  a  homestead  after 

2  In  Georgia  the  statute  (1876)  gov-  sale  has  been  enjoined  till  the  rights 
erns.  Shattles  v.  Melton,  G5  Ga.  464 ;  of  minors  have  been  ascertained. 
Zellers  v.  Beckman,  64  Ga,  747.  The  Colley  v.  Duncan,  47  Ga.  668.  A 
head  of  the  family  need  not  name  the  widow,  in  Georgia,  sold  her  home- 
members  of  it  in  his  pleading.  Hor-  stead  as  the  head  of  a  family  consist- 
ton  V.  Summers,  62  Ga.  302.  A  step-  ing  of  herself  and  her  minor  son.  It 
motlier  may  be  the  head  of  the  family  had  been  regularly  set  apart  to  them 
on  the  death  of  her  husband  while  out  of  the  lands  of  her  late  husband, 
she  cares  for  his  children.  Holloway  without  objection  on  the  part  of  the 
V.  Holloway,  86  Ga.  576.  And  so  major  lieirs.  She  sold  pursuant  to 
may  an  unmanned  woman  who  sup-  judicial  order,  made  under  §  2025  of 
ports  an  invalid  sister  residing  with  the  Georgia  Code.  The  purchaser  was 
her,  in  South  Carolina.  Chamberlain  held  to  have  obtained  a  title  good 
V.  Brown,  33  S.  C.  597.  against  the  heirs  of  age  and  their 

3  Hodges  V.  Hightower,  68  Ga.  281.  privies,  who  had  no  resort  but  against 


MIXOKS    AS    LITIGANTS.  04:9 

A  widow's  possession  oT  a  homestead  is  sufTicicnt  title  to 
enable  her  to  sue  for  damages  to  the  property ; '  and  she  may 
represent  the  children  in  their  claim. 

It  is  thought  that  a  wife  may  sue  to  recover  a  homestead, 
for  herself  and  iier  minor  children,  when  it  has  been  sot  apart 
as  a  homestead  to  her  husband,  and  they  have  been  dispos- 
sessed. The  husband's  being  joined  with  them,  as  a  parly 
plaintiff,  is  not  considered  absolutely  essential.- 

The  transfer  of  landed  property,  including  an  unselccted 
homestead,  by  a  husband  without  his  wife's  consent  by  signa- 
ture, will  not  estop  her  from  claiming  the  rights  of  herself  and 
children,  though  a  suit  in  ejectment,  brought  by  a  jnirchaser 
at  execution  sale,  may  have  ousted  the  husband's,  grantee. 
Not  being  a  party  to  the  ejectment  suit,  she  is  not  concluded 
by  it,  and  may  subsequently  assert  her  right,  and  that  of  her 
children,  to  have  a  homestead  carved  out  of  the  land  to  the 
value  and  quantity  limited  by  law.^ 

No  sale,  under  foreclosure  of  a  mortgage  given  by  a  hus- 
band alone,  can  be  had  after  his  death  without  the  prior  as- 
signment of  homestead  to  the  widow  from  the  mortgaged 
realt}"  which  includes  the  home  place.*  She  has  been  held  not 
prejudiced  by  the  act  of  her  husband  in  leasing  the  home- 
stead from  a  purchaser  of  it  ix'i  a  tax  sale.  She  may  plead  the 
statute  of  limitations  against  the  tax  deed  just  as  though  the 
leasing  had  not  taken  place.^ 

the  property  in  which  the  price  had  otlierwise  entitled  to  do  so  in  the 

been   invested.     The    purchaser    ac-  proper  court.     McMaster  v.  Arthur, 

quired  both  the  title  of  the  estate  and  33  S.  C.  513. 

that  of  the  beneficiaries.     Fleetwood  l  Int.  etc.  E.  Co.  v.  Timmeimann, 

V.  Lord,  87  Ga.  592 ;  13  S.  E.  374.     The  61  Tex.  G60  ;  Tex.  etc.  R,  Co.  v.  Levi! 

widow  retains  life  estate  in  use  which  59  Tex.  674.     Compare  May  v.  Slade. 

her    liusband    had    held.     Lowe    v.  24  Tex.  205,  and  Miller  v.  Brownson, 

Webb,  85  Ga.  731.     In  South  Carolina,  50  Tex.  592. 

the  court  of  common  pleas  will  not  ^  Eve  v.  Cross,  76  Ga.  693 ;  Braswell 

entertain  an  original  proceeding  by  a  v.  McDaniel,  74  Ga.  319 ;  Glover  v. 

widow  for  homestead  in  her  deceased  Stamps.  73  Ga.  209. 

husband's  land.     Scruggs  v.  Foot,  19  3  pifst  Nat.  Bank  of  C.  v.  Jacobs,  50 

S.  C.  274;  Ex  parte  Lewie,  17  S.  C.  Mich.  340. 

153.     But  the  fact  that  sale  has  been  <  Hall  v.  Harris,  113  111.  410. 

ordered  will  not  prevent  a  widow,  5  Beedle  v.  Cowley  (la.),  52  N.  \V. 

for  herself  and  the  minor  children,  493. 

from     claiming    homestead,    when 


650  TUE  children's  homestead. 

§  4.  Bents  and  Profits. 

Minor  children  do  not  forfeit  their  exemption  right  by 
moving  from  the  homestead  after  such  rio^ht  has  once  vested 
in  them.  If  they  are  occupants  when  the  right  accrues,  they 
do  not  lose  their  benefit  by  going  away  from  the  liomcstead 
or  by  being  taken  awa}^  from  it.  They  may  even  remove  or  be 
removed  permanently  without  endangering  their  rights  as 
beneficiaries.^  They  cannot  waive  their  rights.  Purchasers 
are  deemed  to  have  notice  of  such  rights,  and  to  buy  at  their 
peril.  They  are  accountable  for  rents  and  profits  from  the 
homestead  of  a  minor,  purchased  without  right.^  They  can- 
not disturb  the  family's  possession.' 

A  widow  removed  with  her  own  children  from  the  home- 
stead. Her  step-daughter's  husband  administered  on  the 
estate  and  collected  the  rents.  After  some  years,  the  children 
who,  with  their  mother,  had  left  the  premises  as  above  stated, 
sued  the  administrator  for  their  share  of  the  rents,  and  re- 
covered.^ The  renting  of  minor  orphans'  homestead  by  their 
guardian,  who  removes  them  to  his  own  residence,  does  not 
operate  the  forfeiture  of  their  exemption  right.^ 

Where  minor  heirs  have  the  right  conferred  upon  them,  by 
constitutional  provision,  to  share  with  the  widow  of  the  dece- 
dent the  rents  and  profits  of  the  homestead,  she  cannot  debar 
them  from  it  on  the  plea  that  her  dower  has  not  been  as- 
signed.**  There  the  children  share  equally  with  the  widow 
while  they  are  minors.' 

Where  homestead  is  expressly  for  the  benefit  of  widows  and 
minor  children  of  householders,*'  a  childless  widow  has  life- 
estate  in  that  of  her  late  husband,  not  conditioned  upon  her  oc- 
cupancy of  it.     If  he  left  children  by  a  former  wife,  they  share 

1  Farrow  v.  Farrow,  13  Lea,  120.  children  have  a  vested  interest  in  the 

2  Altheimer  v.  Davis,  37  Ark.  316.  rents  and  profits,  during  tlieir  niinor- 

3  Gatton  V.  Tolley,  23  Kas.  678;  ity,  after  the  death  of  their  father 
Dayton  v.  Donart,  22  Kas.  256.  The  widow's  rights  in  the  homestead 

•♦Harmon  v.  Bynum,  40  Tex.  324.  cease  by  abandonment  or  by  the  ac- 

sBrinkerhoff  v.  Everett.  38  III.  265  ;  quisition  of  a  home  of  her  own.    She 

Shirack  v.  Shirack,  44  Kas.  653.  cannot  alienate  it.  Garibaldi  v.  Jones, 

6  Winters   v.    Davis,  51    Ark.  335;  48  Ark.  230. 

Const  Kas.,  ix,  g  6;  Mansfield's  Dig.,  s  Const,  of  Arkansas,  art.  IX,  §§  6, 

§  2588.  10 ;  Dig.  of  Stat,  §§  3590-1 ;  Gainus  v. 

7  Under    these  constitutional    and  Cannon,  42  Ark.  503. 
statutory  provisions,  in  Arkansas,  the 


KELATIVE    TO    INDEBTEDNESS.  651 

the  rents  and  profits  with  their  step-mother  during  their  minor- 
ity but  need  not  Hve  upon  the  premises.  In  case  of  the  widow's 
death  while  they  are  under  age,  they  continue  to  enjoy  the  fruits 
of  the  property  till  they  reach  their  majority.^  A  reason  for  giv- 
ing non-occu})ant  ]iarentless  minors  the  usufruct  of  the  home- 
stead is  found  in  their  want  of  the  capacity  of  claiming  or 
deciding  upon  their  rights.  Their  guardian  may  apply  the  in- 
come to  their  benefit,  and  they  would  not  lose  any  right  by  his 
not  making  a  specific  claim  for  them.-  This  reasoning  would 
not  apply  to  the  widow. 

§  5.  Eelative  to  Indebtedness. 

A  statute,  providing  that  the  homestead  shall  vest  in  the 
widow  and  minor  children  of  a  deceased  head  of  the  family, 
free  from  his  debts  except  those  validly  put  upon  it  during  his 
life;  and  that  they  shall  succeed  to  the  same  estate  which  he 
had,*  was  construed  to  give  the  widow  the  homestead  subject 
to  no  other  debts  of  the  late  husband  than  those  for  which  it 
was  bound  before  his  death.  The  question  was  whether  a 
creditor  whose  claim  antedated  the  purchase  of  the  homestead, 
and  who  therefore  could  have  made  his  money  out  of  it  during 
the  husband's  life,  could  do  so  after  his  death ;  that  is,  whether 
the  right  expired  with  his  life.  The  question  was  settled  in 
favor  of  the  continuance  of  the  creditor's  right.  The  widow 
took  subject  to  the  debt.* 

If  the  court  has  no  authority  to  lay  off  a  homestead,  the 
right  of  a  widow  and  children  to  one  is  not  barred  by  its  order 
to  sell  the  lands  of  the  decedent  to  pay  his  debts.  Though 
they  may  have  been  parties  to  the  proceeding  in  which  the 
order  is  issued,  they  are  not  concluded  by  it,  so  far  as  their 
homestead  rights  are  concerned,  since  it  would  be  futile  for 
them  to  assert  what  the  court  has  no  jurisdiction  to  grant. 

Under  such  order,  homestead  should  be  set  off  to  the  widow 
and  minor  children  before  sale.    An  adjudication  that  the  sale 

1  Klenk  v.  Knoble,    37   Ark.   298 ;  3  Rev.  Laws  of  Vt.,  5^  1898. 

Lindsay  v.  Nonill.  J3G  Ark.  545  ;  Tur-  <  McAlister  v.  White.  13  Atlan. (Vt) 

uer  V.  Vaughan,  33  Ark.  454 ;  Johns-  602  ;  Sinionds  v.  Powers,  28  Vt  354 ; 

ton  V.  Turner,  29  Ai-k.  280.  Perrin  v.  Sargeant»  33  Vt  84. 

'•i  Booth  V.  Goodwin,  29  Ark.  633; 
Gould's  Dig.,  ch.  68,  g  30. 


652  THE  children's  homestead. 

is  subject  to  their  right  was  hekl  illegal,  and  the  purchaser  not 
bound  to  pay,  by  statute  construction.' 

Homestead  property,  descending  to  a  widow  and  minor 
children,  is  not  an  asset  of  the  decedent's  estate  to  be  sub- 
jected to  administration.-  Though  the  family'  residence  of  the 
deceased  be  liable  to  be  taken  in  execution  under  a  judgment 
against  an  heir  who  has  inherited  it  as  ])roperty,  so  that  the 
purchaser  at  the  judicial  sale  would  get  title,  yet  the  posses- 
sion of  the  widow  who  holds  homestead  right  of  occupancy 
cannot  be  disturbed.^  The  case  would  be  different  if  an  adult 
heir  has  established  his  own  homestead  on  the  inherited  prop- 
erty so  as  to  protect  it  from  execution.^ 

Property  that  was  homestead  descends  to  adult  heirs  sub- 
ject to  creditors'  claims  against  their  ancestor,  where  the  home- 
stead provisions  do  not  interfere.^  So,  after  the  rights  of  the 
widow  and  minor  heirs  have  terminated,  the  homestead  prop- 
ert}'',  in  the  absence  of  any  statutory  inhibition,  is  liable  for 
the  debts  of  the  deceased  husband  and  father.  Where  the  re- 
version may  be  sold  to  satisfy  his  debts  before  the  termination 
of  their  right,  the  purchaser  cannot  get  possession  before.** 

Minor  children  hold  the  homestead  of  their  deceased  father 
as  co-tenants.  When  all  become  of  age,  the  late  homestead 
may  be  sold  to  pay  their  father's  debts,  where  there  is  no  ab- 
solute exemption.  Sale  before  would  be  void.  But  any  heir, 
being  adult  at  the  time  of  such  previous  sale,  would  have  to 
wait  till  the  youngest  heir  should  become  of  age,  before 
bringing  action  for  possession  against  the  purchaser  under 
void  title,  as  his  right  of  entry  does  not  accrue  before.'' 

An  act  which  provided  that  ])roperty  exempted  therein 
should  descend  to  the  widow  of  the  decedent  for  herself  and  the 

1  McMaster  v.  Arthur.  33  S.  C.  512 ;        *  Shay  v.  Wheeler,  69  Midi.  254 

12  S.  E.  308 :  Geu.  Stat.  S.  C.  g^  1994,  s  Jackson  v.  Bowles,  C7  Mo.  609,  in 

1997;     Munro    v.    Jeter,     24    S.    C.  exposition  of  Gen.  Stat.  Mo.,  p.  450, 

29;    Ex  parte   Lewie,  17  S.  C.   153;  ^5. 

Myers  v.   Ham,   20    S.    C.   522.    See  « Polan    v.    Vesper,    67    Mo.    727; 

Swandale  v.  Swandale,  25  S.  C.  389 ;  Kaes  v.  Gross.  92  Mo.  647 ;  Rhorer  v. 

Bridgers  v.  Howell,  27  S.  C.  425.  Brockliage,  13  Mo.  App.  397. 

2  Hanks  v.  Crosby,  64  Tex.  483 ;  •  Kessinger  v.  Wilson,  53  Ark.  403 
O'Docherty  v.  McGloin,  25  Tex.  72;  (Eng.  Dig.  Ark.,  ch.  99,  t^  6,  inappli- 
Sossaman  v.  Powell,  21  Tex.  664.  cable) ;    Nichols  v.  Shearon,  49  Ark. 

'i  Harris   v.   Seinsheinier,   67    Tex.     75 ;  Kirksey  v.  Cole,  47  Ark.  504. 
356. 


RE(-ATIVE    TO    INDEBTEDNESS. 


653 


children  was  construed  to  make  her  and  them  co-tenants  in  tlie 
homestead;  and  it  was  held  that  their  interest,  during:  her 
widowhood,  might  be  sold  by  order  of  the  ])robate  court,  just 
as  any  other  property  derived  from  their  father  might  be 
sold.'  As  the  children  owned  the  fee  and  the  mother  only 
an  estate  terminable  by  either  her  widowhood  or  her  life, 
there  was  tenancy  in  common. 

Ahsolute  title:  AVhere  the  title,  taken  by  the  widow  and 
the  minor  children,  is  absolute,  it  cannot  be  divested  by  the 
probate  court  or  affected  by  the  claims  of  the  deceased  hus- 
band's creditors.^  The  indebtedness  of  his  general  estate  does 
not  everywhere  make  any  difference  as  to  whether  such  title 
be  absolute  or  qualified.'^  The  widow  and  minor  take  the 
homestead  absolutely,  in  some  states,  when  the  decedent's  es- 
tate is  insolvent;^  but  she  takes  only  a  life  tenure,  and  they 
an  estate  for  years,  when  it  is  otherwise,  since  in  the  latter 
case  the  heirs  inherit  so  that  their  title  cannot  be  divested  by 
law. 


1  Morton  v.  McCanless,  68  Miss.  810 ; 
10  So.  72.  Campbell.,  C.  J.:  "The 
only  question  in  this  case  different 
fi'om  those  decided  in  Morton  v.  Car- 
roll, 68  Miss.  699,  9  South.  Rep.  896,  is 
as  to  the  validity  of  an  order  of  the 
probate  court  to  sell  what  is  alleged 
and  proved  to  have  been  the  exempt 
j)roperty  of  the  father  of  the  plaint- 
iffs, held  under  the  act  entitled  '  An 
act  to  amend  the  exemption  laws  of 
this  state,'  approved  November  28, 
18G5  (Acts,  p.  137).  The  children  and 
their  mother  were  co-tenants  of  this 
land,  the  mother  having  an  interest 
terminable  by  her  marriage  or  death, 
and  the  children  having  the  fee. 
Hardin  v.  Osborne.  43  Miss.  533.  The 
Interestof  the  children  was  subject  to 
sale  as  anj"^  other  land  owned  by  them. 
McCaleb  v.  Burnett,  55  Miss.  83 ;  Code 
1857,  art.  151,  p.  463.  The  whole  ob- 
ject of  the  exemption  law  of  18G6  was 
to  preserve  the  property  from  credit- 
ors, and  not  to  affect  ths  power  of  the 
courts  to  deal  with  the  property  as 
that  of  the  children  and  heirs  of  the 


exemptionist.  In  the  probate  court 
proceedings  resulting  in  the  sale  of  the 
lands  sued  for  here,  there  was  no  men- 
tion of  the  land  being  homestead  or 
exempt  property.  The  contrary  is 
rather  suggested  by  treating  the  land 
as  subject  to  the  widow's  dower,  but 
the  blundering  ignorance  on  this  sub 
ject  did  not  affect  the  power  of  the 
court  to  deal  with  it,  and  fortunately 
the  proceeding  was  so  conducted  as 
to  result  in  a  valid  order  of  sale, 
whereliy  the  wicked  and  shameful 
scheme  which  the  then  guardian  now 
swears  she  had  in  view  was  effect- 
ually defeated.  We  are  constrained 
to  believe  that  her  memory  is  at  fault, 
and  that  she  does  great  injustice  to 
honorable  counselors  when  she  states 
that  this  scheme  was  with  the  knowl- 
edge andadviceof  her  lawyers.  The 
result  in  this  case  was  right." 

2  Plate  V.  Koehler.  8  Mo.  App.  396. 

3  Freund  v.  McCall,  73  Mo.  343. 
■^Hager  v.   Nixon,  69  N.    C.   112; 

Allen  v.  Shields,  72  N.  C.  506. 


654  THE  children's  homestead. 

Exemption  was  held  to  have  vested  absohitely  in  the  widow 
and  minor  children  of  an  insolvent,  though  he  had  had  no 
homestead  set  apart  or  dedicated  or  occupied.  He  lived  in  a 
rented  house  up  to  the  date  of  his  death.  His  real  estate  con- 
sisted of  a  store-house  and  lot,  and  it  was  assigned  to  his 
widow  and  children.^  But  when  the  estate  of  a  widower  was 
not  reported  insolvent  till  his  son  had  finished  his  minority 
and  the  homestead  right  had  thus  expired,  it  did  not  vest  ab- 
solutely by  reason  of  the  subsequent  ascertainment  of  the  in- 
solvency.2 

If  the  widow  and  minor  children  are  left  in  possession,  and 
continue  to  occupy  the  homestead  of  the  husband  and  father 
who  died  intestate,  they  cannot  be  disturbed  by  distribution 
of  the  estate  or  sale  to  pay  debts,  where  they  hold  the  home- 
stead by  absolute  title;''  and  if  she  remarry,  one-half  of  that 
property  is  hers  and  the  other  belongs  to  the  children.*  The 
statute  was  construed  to  mean  that  if  the  widow  remarry  and 
yet  continue  to  reside  on  the  homestead,  the  exemption  Avould 
still  hold  good  notwithstanding  partition  between  her  and  the 
children.* 

Under  another  statute  the  homestead  that  was  owned  in  fee 
by  the  deceased  head  of  his  family,  his  widow  is  entitled  to 
occupy ;  and  she  does  not  forfeit  the  right  by  remarriage.* 
"When  both  parents  are  dead,  the  right  of  occupancy  continues 
in  the  minor  children.^ 

§  6.  Necessitous  Children. 

Homestead  laws  are  not  for  the  benefit  of  orphans,  as  such, 
since  the}^  do  not  provide  for  all  orphans.  The  parentless 
children  among  the  abject  poor  have  no  part  nor  lot  in  the 
statutory  provisions.  Only  the  children  of  property-holders 
are  interested.  And  they  are  beneficiaries  whether  they  be 
orphans  or  not.  If  their  parents  have  deserted  them  in  a  way 
that  would  not  amount  to  an  abandonment  of  the  homestead, 

iHartsfield  v.    Harvoley,   71   Ala,        5  Brady  v.  Banta,  46  Kas.  131;  26 
231 ;  Ala.  Code  of  1876,  §§  2837,  2840.     Pac.  441. 
2  Baker  v.  Keith,  72  Ala,  121.  6  Fore  v.  Fore's  Est.  (N.  D.),  50  N. 

3Gen.  Stat,  of  Kansas  (1889),  §2593.     W.  712;   Com.  Laws  of  North  Da- 
<  id.,  §  2596.  kota.  S§  2450-1,  5778,  5781. 

7  §  5778. 


i 


PARTITION.  655 

the  minor  cbiklren  remaining  on  it  would  be  protected  in  its 
enjoyment. 

The  rule,  that  the  children's  homestead  is  given  without  re- 
gard to  their  necessities,  is  not  without  exception.' 

Minorit}'-,  not  necessity,  is  generally  the  condition  on  which 
the  children's  homestead  is  conferred.'^  The  whole  homestead 
of  the  father  vests  in  one  minor  child  for  the  years  of  its  mi- 
nority if  all  the  other  children  are  adults.' 

The  children's  homestead  right  is  not  extended  beyond  their 
minority  because  of  their  need.  The  imbecility  of  one  of  the  chil- 
dren, of  a  mother  who  had  been  accorded  homestead  as  the 
head  of  a  family  when  her  children  were  under  age,  was  held 
to  be  not  a  sufficient  reason  for  prolonging  the  homestead 
right  beyond  the  minority  of  the  imbecile  child  and  the  death 
of  the  mother.  The  malady,  though  contracted  in  childhood 
and  after  the  granting  of  the  homestead,  did  not  have  the  ef- 
fect of  extending  the  duration  of  the  homestead.* 

§  7.  Partition. 
Immediate  partition  of  the  homestead  between  the  widow 
and  minor  children  of  the  householder,  upon  his  death,  is  not 
usually  authorized.  The  contemplation  of  the  legislator  is 
that  they  should  live  together  preserving  the  home  which  the 
policy  of  the  law  seeks  to  conserve  and  protect.  It  is  subject 
to  exceptions,  but  such  contemplation  extensively  prevails. 
Partition  is  deferred  till  the  children  reach  their  majorit}'. 
The  remarriage  of  the  widow  terminates  the  commune  and 
gives  occasion  for  partition  under  some  statutes.  While  she 
remains  single  and  occupies  the  premises,  she  is  entitled  to 
her  complete  homestead  privilege,  even  though  the  minor 

1  In    Louisiana,   minors    must    be  -  Tate  v,  Goflf  (Ga.),  15  S.  E.  30. 

"  persons  dependent "  to  become  ben-  3  Simpson  v.  Wallace,  83  N.  C.  477 ; 

eficiaries.    Woods  v.  Perkins,  43  La.  Wharton   v.  Leggett,  80   N.  C.  169 ; 

An.  847 ;  Briant  v.  Lyons,  29  La.  An.  Hager  v.  Nixon,  G9  N.  C.  108.     By 

64;  Succession  of  Robertson,  28  La.  art  10,  §  5,  Const  N.  C.  (1868),  the 

An.  832 ;    McCoy  v.  McCoy,   26  La.  widow  was  excluded  from  homestead 

An.  686 ;  Succession  of  Melangon,  25  if  there  were  minor  children. 

La.  An.  535;  Burnett  v.  Walker,  23  *  Neal  v.  Brockhan,  87  Ga.  130;  13 

La.  An.  335 ;  Succession  of  Norton,  S.  E.  283 ;   Vanberg  v.  Owens  (Ga.), 

18  La.  An.  36 ;  McCall  v.  McCall,  15  14  S.  E.  562. 
La.  An.  537 ;  Stewart  v.  Stewart,  13 
La.  An.  398 ;  Const  of  La.,  art  219. 


656  THE    CIITLDKEN'S    nOMESTEAD. 

beneficiaries  may  have  left  their  home.'  But,  when  they 
were  living  permanently  out  of  the  state,  she  was  denied 
homestead.^ 

When  the  homestead  period  has  expired,  the  partition  may 
take  place  between  the  remarried  widow  and  the  heirs  now 
all  adult,  just  as  any  other  real  estate  of  the  decedent  might 
be  divided.  The  difference  between  partition  of  the  latter 
and  of  homestead  is  that  in  one  case  it  may  be  immediate 
upon  the  death  of  the  owner,  while  in  the  other  it  is  post- 
poned. 

AVhen  the  minor  children  of  a  deceased  homestead-holder 
have  had  their  portion  of  the  homestead  assigned  to  them, 
and  no  objection  to  the  partition  and  assignment  w^as  made 
by  the  widow  at  the  time,  and  they  have  enjoyed  possession 
for  years,  she  cannot  be  heard  to  dispute  their  title.  There  is 
a  case  in  which  this  was  held,  wdiere  the  partition  had  been 
made  on  the  application  of  the  children's  guardian  without 
any  objection  being  interposed.  After  they  had  been  in  the 
enjoyment  of  their  portion  for  tw^elve  years,  the  widow  at- 
tacked their  title  in  vain.' 

The  homestead  is  not  usually  partitioned  between  the  widow 
and  minor:  ^  the  polic}^  of  the  law  is  to  keep  them  together 
in  the  family  home.  This  policy  is  such  that  in  a  partition 
suit,  instituted  by  the  adult  heirs  of  a  deceased  mortgagor 
of  a  homestead  occupied  by  his  widow  and  minor  heirs,  the 
plaintiffs  cannot  compel  foreclosure  if  the  interest  is  promptlv 
paid  by  the  widow  and  the  mortgagee  does  not  desire  that 
the  mortgage  be  foreclosed.^ 

"Whether  adult  heirs  have  the  right  of  partition  while  there 
are  minor  heirs  and  a  widow  depends,  of  course,  upon  the 
statute  of  each   state.      Unless  restrained  by  statute,  they 

1  Hafer  v  Hafer,  36  Kas.  524;  Van-  And  the  statute  declares  the  home- 
diver  V.   Vandiver,  20   Kas.  501 ;  iu  stead  to  be  the  absolute  property  of 
exposition  of  Comp.  Laws  of  1879,  the  widow  and  children, 
ch.  33,  g  5:  "If  the  intestate  left  a  2 Rock  v.  Haas,  110  IU.  528. 
widow  and  children,  and  the  widow  3  Criinmins  v,   Morrisey,   86  Kas. 
again   marry,   or  when  all  of  said  447. 

children  arrive  at  the  age  of  major-  ■*  Trotter  v.  Trotter,  31  Ark.   145 ; 

ity,  said  homestead  shall  be  divided,  Nicholas  v.  Purczell,  21  la.  265. 

one-half  in  value  to  the  widow  and  6  Hannah   v.  Hannah  (Mo.),   19  S. 

the  other  one-half  to  the  children."  W,  87. 


PARTITION.  057 

would  have  such  right  as  a  general  rule.'  They  are  not  ac- 
corded it,  however,  in  all  the  states.'^  Wherever  it  is  ac- 
corded, if  the  interest  of  the  widow  is  adverse  to  that  of  the 
minor  heirs,  they  must  be  represented  by  a  guardian  or  other 
disinterested  representative.'  Adult  heirs  cannot  have  the 
homestead  of  the  widow  of  an  intestate  partitioned  as  a  part  of 
the  estate,  when  she  is  possessed  in  conformity  to  the  law  of 
the  state,  whether  she  has  children  of  her  own  living  with  lior 
or  not.* 

Insolvent  estates:  Under  a  constitutional  provision  giving 
to  the  surviving  spouse  the  use  of  the  homestead  for  life,  and 
to  the  guardian  of  minor  children  such  use  as  long  as  may  be 
permitted  by  the  court  having  jurisdiction,*  there  can  be  no 
partition  of  the  property  while  so  used,  in  order  to  give  adult 
heirs  their  portion,  though  the  law  of  descent  is  not  otherwise 
affected.  By  the  article  of  the  constitution,  above  cited, 
which  leaves  even  the  homestead  of  an  insolvent  to  descend 
like  other  property,  subject  to  the  suspense  above  indicated 
in  favor  of  the  surviving  spouse  and  minor  children,  it  is  held 
not  liable  for  the  debts  of  the  deceased  family  head.  A  stat- 
utory provision  in  contravention  of  this  constitutional  rule  of 
descent  is  void  so  far,  and  only  so  far,  as  it  contravenes  the 
rule.^  But  this  holding,  that  the  homestead  is  not  liable  in 
the  hands  of  adult  heirs  for  the  debts  of  the  deceased  house- 
holder, did  not  have  the  concurrence  of  the  whole  court.  It 
was  ably  contended  by  the  chief  justice  that  the  constitution 
does  not  warrant  this  doctrine,  and  that  the  statute  assailed 
is  not  in  contravention." 

1  Kemp    V.    Kemp,    42    Ga.    523;     quoted    and  approved  in  Adair  v. 
Hager  v.  Nixon,  69  N.  C.  108 ;  Fight    Hare,  73  Tex.  273. 

V.  Holt,  80  111,  84 ;  Spaulding's  Ap-  *  Yoe  v.  Hanvey,  25  &  C.  94 ;  Moore 

peal,   52    N.    H.   336.      {See  Tidd  v.  v.  Parker,   13  S.  C.  486 ;  Bradley  v. 

Quinn.  52  N.  H.  344,  and  Barney  v.  Rodelsperger,  3  S.  C.  227,  and  17  S.  C. 

Leeds,  51  N.  H.  253.)  9.     Compare  Elliott  v.  Mackorell.  19 

2  Nicholas  v.  Purczell,  21  la.  265 ;  S.  C.   242 ;  Ex  parte  Ray,  20  S.  C. 
Heard  v.  Downer,  47  Ga.  631 ;  Booth  246 ;  Chalmers  v.  Turnipseed,  21  S. 
V.   Goodwin,   29  Ark.   636;    Day   v.  C.  136;  Act  of  1873,  15  Stat  371. 
Adams,  42  Vt.  517;  Sheehy  v.  Miles  »  Const  Texas,  art  16,  §  52;  Rev. 
(Cal.),  28  Pac.  1046 ;  Estate  of  James,  Stat  of  Texas,  art  1996,  §  4. 

23  Cal.  415.  <>  Zwernemann  v.  Von  Rosenberg, 

'Osborne  v.  Osborne,  76  Tex.  494;  76  Tex.  522,  and  cases  cited. 

Hudgins  v.   Sansom,    72    Tex.    229,  '^ Dissent   by   Stayton,    C.  J.;    lb., 

42  p.  528,  and  many  cases  cited. 


658  TFIE    CHILDREN  S    HOMESTEAD. 

Again  the  question  came  up  at  the  same  term  in  which  the 
last  cited  case  was  decided,  and  the  deliverance  was  in  accord ; 
and  again  the  chief  justice  dissented. • 

A  statute  provides  that  in  partition  suits  in  case  of  sale,  the 
court  may  order  the  sale  of  property  in  which  one  is  entitled 
to  claim  an  estate  of  homestead,  if  the  person  so  entitled  con- 
sent to  have  such  property  sold  with  the  rest  of  the  realty 
involved  in  the  suit.  The  necessity  of  the  sale  of  the  latter 
must  first  have  been  found. 

If  a  party  to  the  partition  suit  is  decreed  to  be  entitled  to 
an  estate  of  homestead  in  the  land  to  be  divided,  it  must  be 
set  off  by  commissioners  before  the  sale  of  the  rest,  w^hen  he 
has  not  consented  to  have  it  all  sold  together.  A  partition 
without  such  setting  off  would  be  illegal ;  and  an  order  for  it 
would  be  reversible  error.  The  setting  apart  is  imperative  if 
it  can  be  done  without  injury  to  the  parties  in  interest.^ 

The  homestead  of  an  insolvent  was  set  apart  to  his  widow. 
Their  adult  daughter  inherited  the  homestead  (which  had 
been  community  property  of  her  parents),  upon  the  death  of 
her  mother,  with  absolute  title,  exempt  from  the  claims  of 
creditors  and  not  subject  to  administration.  It  was  held  that 
a  statutory  provision  conferring  the  title  of  the  homestead 
absolutely  upon  the  widow  and  minor  children  is  unconsti- 
tutional because  divesting  the  rights  of  adult  heirs.*     The 

1  Childers   v.    Henderson,   76  Tex.  with  appellants'   contention  by  the 

664.  decision  of  tlie  supreme  court  in  the 

'-Cribben  v.  Cribben  (111.),  27  N.  E.  case  of  Zwernemann  v.  Von  Rosen- 

70 ;  111.  Rev.  Stat.,  ch.  106,  §  32.  berg,  76  Tex.  522,  13  S.  W.  Rep.  485. 

3  Lacy  V.  Lockett  (Tex.),  17  S.  W.  and    that,   therefoi-e,   the  judgment 

916;  Const,  of  Texas,  art.  16,  §  53;  rendered   in   favor  of  the  adminis- 

Rev.  Stat,  arts.  1817,  1993,  2002,  2007;  trator  is  incorrect,  and  ought  to  be 

Zwernemann  v.  Von  Rosenberg,  76  reversed.     Rev.    St.,  arts.  1817,  2003. 

Tex.  522;  Scott  v.  Cunningham,  60  Under  article  1817,  the  administrator 

Tex.   566;    Rainey  v.  Chambers,   56  is  not  entitled  to  the  possession   of 

Tex.  20.     Formerly  the  widow  took  the  exempted  property.     The  estate 

in  fee,  in  case  of  insolvency.    Horn  v.  of  N.  H.  Cook  being  insolvent,  and 

Arnold,  53  Tex.   161,  under  probate  the    homestead    having    been    "'set 

law  of  1848;  Reeves  v.  Petty,  44  Tex.  apart."  in  accordance  with  the  pro- 

249 ;  Green  v.  Crow,  17  Tex.  188.     In  visions  of  law  in  such  case,  by  the 

the  case  of  Lacy  v.  Lockett,  supra,  county  court  to  Mi's.  Cook  as  the  sur- 

the  court,  after  stating  tlie  facts  at  viving  widow  and  constituent  of  the 

length,  delivered  the  following  opin-  family,   she   took   the   same   unbur- 

ion  :  We  regard  the  question  liere  pre-  dened  with  any  debts  of  the  husband, 

sented  as  determined  in  accordance  and  free    from    the    claims    of  his 


PARTITION. 


659 


doctrine  enounced  is  that  the  rights  of  adnlt  heirs  cannot  be 
divested ;  but  that  creditors  have  no  right  to  look  to  the  home- 
stead, and  therefore  they  are  not  injured  by  the  grant  of  an 
absolute  title  to  the  widou'  and  niinoi'  cliildren.     If  there  be 


debtors.  7(7.,  art.  2002;  Cliildeis  v. 
Henderson,  TO  Tex.  664,  13  S.  W. 
Rep.  481.  This  exemption,  under 
such  circumstances,  was  a  continu- 
infj  and  a  permanent  one,  and  "  ad- 
hered to  the  land,"  not  merely  to  the 
hoinrstrad  right  in  the  land.  This 
results  from  the  terms  of  the  present 
statutes  on  the  subject,  and  was  tlie 
rule  under  former  laws.  Articles 
1817,  1993,  2002,  2005,  2007 :  Zwerne- 
mann  v.  Voa  Rosenber^-^,  supr(t; 
Scott  V.  Cunningham,  60  Tex.  566; 
Rainey  v.  Chambers,  56  Tex.  20; 
Reeves  v.  Petty,  44  Tex.  249 :  Horn  v. 
Arnold,  52  Tex.  161 ;  Green  v.  Crow, 
17  Tex.  188.  Article  2002  is  uncou- 
etitutional  only  in  so  far  as  it  .  t- 
ternpts  to  vest  the  fee  in  tlie  home- 
stead in  the  widow,  another  surviv- 
ing constituent  of  the  family,  abso- 
lutely, to  the  exclusion  of  the  ailult 
sous  or  married  daughters,  contrary 
to  the  mode  of  descent  prescribed  in 
the  constitution.  Case  first  lited, 
and  article  16,  §  53,  Const.  The  bal- 
ance of  this  provision  of  law  is  oper- 
ative. Id.  The  remaining  part, 
which  does  not  conflict  with  the 
constitution,  plainly  declares  that  the 
homestead  set  apart  to  the  widow 
and  children,  *'  as  provided  by  law, 
and,  when  the  estate  proves  to  be  in- 
solvent," "  shall  not  be  taken  for  any 
debts  of  the  estate,"  except  for  the 
purchase  money  thereof,  taxes 
thereon,  and  for  improvements. 
Article  2007.  As  construed  in  the 
opinion  of  the  majority  of  the  court 
in  the  foregoing  case,  this  provision 
of  law  has  the  effect  of  removing  the 
property  set  apart  to  the  surviving 
wife  from  the  assets  of  the  estate  of 
the  decedent,   and    of   permanently 


protocoling  the  projierty  from  the 
claims  of  the  creditors.  Of  "course, 
if  both  Imsband  and  wife  die,  leaving 
no  constituent  of  the  family,  the 
homestead  could  not  be  "  set  apart," 
but  would  be  assets  in  the  hands  of 
the  administrator  for  the  payment  of 
debts.  Givens  v.  Hudson,  64  Tex. 
471.  Upon  the  death  of  N.  H.  Cook 
his  wife  and  daughter  inherited  or 
took  the  title  to  the  land  composing 
the  homestead  in  equal  portions,  and 
upon  the  decease  of  Mrs.  Cook  the 
title  to  the  whole  property  (except 
that  part  already  sold)  vested  in  the 
appellant  Mrs.  Annie  G.  Lacy.  As 
the  exemption  froin  forced  sale  con- 
tinued from  the  time  it  was  set  apart 
to  her  mother,  and  as  it  was  there- 
after not  liable  for  the  debts  of  the 
deceased  father,  as  we  have  seen,  it 
follows  that  she  inherited  the  prop- 
erty absolutely,  and  free  from  the 
claims  of  the  creditors  or  the  admin- 
istrator. See,  also,  76  Tex,  664,  13  S. 
W.  Rep.  481,  and  Hoffman  v.  Hoff- 
man, 79  Tex.  189,  14  S.  W.  Rep.  915, 
and  15  S.  W.  Rep.  471.  Tliese  con- 
clusions, we  think,  necessarily  result 
from  the  opinion  of  the  court  in 
Zwernemann  v.  Von  Roseubeig, 
sii2)ra,  and  we  content  ourselves, 
therefore,  with  resting  the  decision 
now  made  upon  the  authority  of  that 
case.  See  dissenting  opinion  of 
Chief  Justice  Stayton.  This  also 
determines  the  question  in  favor  of 
]\Irs.  Anderson.  The  Eouldins  were 
protected  by  the  judgment  below 
upon  the  ground  that  the  purchase 
monej'  paid  by  J,  W.  Eouldin  was 
expended  by  Mrs.  Cook  in  improving 
the  land  in  dispute.  No  one  com- 
plains of  that  on   this  appeal.     We 


660  THE  children's  homestead. 

anything  inheritable,  in  the  estate  of  a  decedent,  it  seems  clear 
that  the  heirs  cannot  constitutionally  be  cut  off;  but  what  is 
there  for  them  in  an  insolvent  estate?  If  any  wrong  is  done 
by  the  enactment  of  the  provision  above  mentioned,  it  was 
rather  done  to  the  creditors  than  to  the  heirs  —  one  might 
say  —  if  the  principle  were  not  well  established  that  creditors 
who  are  notified  before  giving  trust  cannot  look  to  the  debtor's 
homestead  as  any  part  of  the  (Common  pledge  for  the  security 
of  the  debt.  Under  some  statutes,  the  creditor's  remedy  is 
not  denied,  but  merely  postponed,  so  that  when  the  minor 
children  of  a  debtor  had  had  homestead  in  their  father's  es- 
tate which  was  insufficient  to  pa}^  his  debts  without  it,  the 
homestead  was  applied  to  the  payment  on  the  expiration  of 
the  children's  right  by  reaching  their  majority.^ 

conclude  that,   as  between  appellee  pay  in  due  course  of  administration 

and  the  Bouldins,  the  judgment  in  all  costs  of  the  district  court  and  of 

their  favor  ought  to  be  afiSrmed,  but  this  appeal. 

that  as  between  appellants  Mrs.  Diana  Per  Curiam.  Affirmed  and  re- 
Anderson  and  Mrs.  Annie  G.  Lacy  versed  and  remanded,  as  per  report 
and  her  husband  and  the  appellee  of  the  commission  of  appeals, 
the  judgment  in  her  favor  should  be  Stayton,  C.  J.  (dissenting).  I  do 
reversed,  and  here  rendered  in  favor  not  concur  in  the  opinion  of  this 
of  the  appellants,  so  that  appellee  case,  for  the  reasons  given  in  dissent- 
shall  take  nothing  by  the  suit,  but  ing  opinion  in  Zwernemann  v.  Von 
that  the  appellants  be  dismissed  with  Rosenberg,  76  Tex.  528,  13  S.  W.  Eep. 
their  costs,  and  that  appellee,  as  ad-  485. 
ministrator,  etc.,  shall  be  adjudged  to  i  Taylor  v.  Thoni,  29  O.  St  569. 


CHAPTER  XXII. 


ALLOTMENT  TO  THE  DEBTOR 


1.  Statutory  Provisions. 

2.  The  Debtor's  Application. 

3.  The  Sheriff's  Duty  before  Sale. 


4.  The  Creditor's  Contesting  Affi- 

davit. 

5.  Confirmation  by  the  Court. 
G.  Costs  Impairing  Contract 


§  1.  Statutory  ProTisioiis. 

"When  judgment  has  been  rendered  against  a  debtor  entitled 
to  homestead,  and  execution  has  been  issued  or  is  about  to  be 
issued  against  property  in  which  his  homestead  interest  lies, 
it  becomes  necessary  to  allot  to  him  what  the  law  allows  him. 
to  hold  exempt  from  execution.     This  is  necessary, 

1.  When  the  property  occupied  by  the  debtor  as  his  home- 
stead is  charged  by  the  creditor  to  be  in  excess  of  the  stat- 
utory limitation. 

2.  When  no  homestead  has  been  declared,  selected  or  dedi- 
cated by  the  debtor,  so  that  his  exemption  right  must  be 
claimed  by  him  and  awarded  by  the  court. 

3.  When  the  married  debtor  has  mortgaged  his  homestead 
with  other  property  connected  therewith,  without  his  wife's 
consent,  so  that,  upon  foreclosure  of  the  mortgage,  the  liable 
portion  must  be  separated  from  that  which  is  exempt. 

Application  for  the  allotment  is  made  by  the  party  in- 
terested. The  debtor  is  that  party  in  states  where  his  silence 
would  be  taken  as  assent  to  the  execution ;  Avhere  he  is  re- 
quired to  claim  his  right,  if  he  does  not  mean  to  forfeit  it. 
Under  such  rule,  it  is  usually  allowable  for  his  wife  to  claim 
in  his  stead,  if  he  neglects  or  refuses  to  act.  Even  minor 
beneficiaries  of  exemption  may  claim  through  their  guardian, 
under  circumstances  rendering  such  action  necessary  for  the 
maintenance  of  their  rights. 

The  tender  solicitude  of  the  legislator  for  the  interests  of 
wives  and  minor  children,  and  his  policy  of  conserving  homes 
for  the  public  welfare,  cause  tlie  rule  allowing  their  interven- 
tion to  be  liberally  extended  to  them.     And  the  widow  of  a 


662  ALLOTMENT  TO  THE  DEBTOR. 

debtor  who  has  died  at  the  juncture  when  application  was  to 
be  made,  if  made  at  all,  may  act  in  his  stead.  It  is  her  place, 
not  that  of  the  executor  or  administrator,  to  apply  for  the 
allotment,  when  the  homestead  constitutes  no  part  of  the  es- 
tate that  is  administrable  by  him.  The  debtor  may  make  the 
application  through  an  agent  or  attorney. 

The  creditor  is  the  party  to  make  application  for  allotment 
to  the  debtor  where  presumption  is  in  favor  of  the  latter  as  to 
the  extent  and  value  of  the  homestead  occupied  by  him :  and 
where  the  debtor  would  be  guilty  of  no  laches,  and  would  for- 
feit no  right,  by  failure  to  claim.  If  the  law  strikes  the  sale 
of  a  homestead  with  nullity  when  it  is  sold  with  liable  prop- 
erty, without  segregation,  it  is  manifestly  to  the  interest  of 
the  creditor  to  have  the  exempt  portion  set  apart  to  the  debtor, 
so  that  the  liable  portion  may  be  validly  subjected  to  execu- 
tion. 

The  application  should  state  the  facts,  name  the  parties,  de- 
scribe the  projierty,  and  pray  for  appraisement  and  for  the 
allotment  of  the  homestead.  If  the  debtor's  wife  be  the  ap- 
plicant, she  should  aver  her  relation,  and  it  is  generally  re- 
quired that  she  declare  that  her  husband  has  neglected  or 
refused  to  apply,  as  the  case  may  be.  If  a  guardian  is  the 
applicant,  he  should  aver  his  position  and  the  circumstances 
justifying  his  appearance  and  application. 

The  most  important  allegations  of  the  debtor  (or  of  any  one 
representing  his  and  his  family's  interest)  are  the  facts  of 
ownership,  occupancy,  family  headship  and  whatever  the  stat- 
ute imposes  as  conditions  to  the  right  of  homestead.  And  if 
the  whole  of  the  property  occupied  is  claimed  as  exempt,  the 
quantity  and  value  ought  to  be  asserted  as  not  exceeding  the 
statutory  limit. 

The  appraisement  is  made  by  appraisers,  commissioners  or 
jurors,  as  they  are  differently  called  in  different  states.  There 
are  usually  three  or  more.  It  is  a  provision  not  unusual  that 
the  plaintiff  may  nominate  one;  the  defendant,  another;  and 
the  sheriff,  the  third.  The  court  appoints ;  in  some  states, 
the  officer  charged  with  the  execution  appoints  the  apprais- 
ers. When  it  is  made  his  duty  to  set  apart  the  statutory 
homestead  to  the  debtor  before  or  at  the  time  of  making  his 
levy,  he  is  aided  in  doing  so  by  appraisers,  usually  those  of 


STATDTORY    PROVISIONS.  663 

liis  own  appointment,  tliough  two  may  be  nominated  by  the 
parties.  Some  statutes  require  that  appraisers  shall  be  free- 
holders or  houseliolders. 

Tlie  duty  of  the  a])praiscrs  is  not  only  to  estimate  the  home- 
stead but  to  ascertain  whether  it  is  susceptible  of  division  if 
found  in  excess  of  the  limit  as  to  quantity  or  value. 

The  report  must  be  reduced  to  writing,  duly  returned  and 
filed  in  the  record  of  the  case.  Either  party  may  oppose  it 
by  the  ordinary  legal  methods  of  opposition  to  awards  of 
auditors  and  the  like.  If  there  is  a  statutory  method  pre- 
scribed, that  should  be  observed.  In  some  states,  there  are 
such.     The  following  is  a  sample: 

The  creditor,  as  plaintiff  in  execution,  may  file  an  affidavit 
in  the  case,  before  the  return  of  the  writ,  declaring  that  he 
verily  believes  the  allotment  made  to  the  debtor  by  the  per- 
sons appointed  for  the  purpose  "is  not  correct,  and  that  the 
land  so  allotted,  or  some  part  of  it,  is  liable  to  sale  under  his 
execution.''  Then  a  summons  must  be  issued  for  the  defend- 
ant, returnable  to  the  next  term  of  court.  On  its  return,  issue 
is  made  under  the  direction  of  the  court,  and  tried  "  as  in  the 
case  of  the  trial  of  the  right  of  property  levied  on  by  execu- 
tion or  attachment  and  claimed  by  a  third  person ;  and  if  the 
issue  bo  found  for  plaintiff,  a  venditioni  exponas  shall  be  issued 
for  the  sale  of  such  of  said  land  as  may  have  been  found  lia- 
ble to  sale."  ^ 

On  the  other  hand,  a  dissatisfied  debtor-defendant  may 
make  affidavit  of  the  incorrectness  of  the  award  to  him,  cause 
summons  to  be  issued  to  the  plaintiff,  and  have  the  matter 
judicially  settled. ^ 

If  the  report  of  the  appraisers  favors  division,  and  is  such 
as  the  court  will  adopt  and  act  upon,  the  reservation  of  the 
exempt  portion  will  be  ordered,  and  the  execution  will  oper- 
ate upon  the  rest.  If  the  re])ort  shows  that  the  property  is 
indivisible,  yet  excessive,  the  court  will  allow  the  whole  to  be 
sold,  and  will  have  the  value  of  the  homestead  reserved  for 
the  debtor,  out  of  the  proceeds,  in  accordance  with  law.  The 
sum  thus  reserved  is  exempt  in  the  hands  of  the  debtor  for 
such  period  as  the  statute  of  the  state  prescribes :  six  months, 

1  Miss.  Rev.  Code,  1880,  §  1253.   See        ^  lb.,  §  1254. 
Miss.  Code  of  1892. 


664  ALLOTMENT  TO  THE  DEBTOB. 

one  year,  or  two  years,  as  the  limit  may  be;  one  year  is  the 
usual  term. 

If,  at  the  offering'  at  public  auction,  no  bid  exceeds  the 
homestead  limit  of  value,  there  can  be  no  adjudication. 

It  is  a  provision  not  unusual  that  the  debtor  may  save  his 
indivisible  and  excessive  homestead  from  execution  by  paying 
the  excess  inlo  court  for  the  use  of  the  creditor.  If  the  cred- 
itor gets  out  of  the  debtor  all  that  he  could  make  out  of  the 
property,  justice  is  satisfied.  Can  this  be  done  in  the  absence 
of  such  a  provision?  There  is  nothing  to  hinder  the  debtor 
from  paying,  but  the  release  of  the  excess  from  execution 
would  not  attend  the  payment,  without  such  provision,  unless 
he  should  pay  enough  to  satisfy  the  whole  debt.  For  it  is  his 
duty  to  pay  all,  if  he  can ;  and  his  payment  of  a  part  would 
not  relieve  his  property  exceeding  the  homestead  from  lia- 
bility to  pay  the  balance  of  the  debt. 

Under  such  statutory  provision  is  the  excess,  thus  relieved 
by  payment,  liable  to  a  second  execution?  Clearly.  To  a 
second  by  the  same  creditor?  Yes;  for  it  has  not  been  ren- 
dered exempt  as  a  part  of  the  homestead.  It  has  only  been 
relieved  from  the  first  execution  by  statutory  provision.  At- 
tacked again,  it  may  be  relieved  again,  under  the  same  pro- 
vision, by  payment  of  so  much  of  the  debt  as  its  execution 
would  satisfy.  Here  is  no  hardship  to  the  debtor.  He  has  his 
exempt  portion  and  is  entitled  to  no  more;  and  he  is  not 
made  to  pay  for  it  twice,  but  to  pay  two  different  debts  which 
he  ought  to  pay. 

On  the  other  hand,  by  a  provision  not  so  common,  the  cred- 
itor may  pa}^  the  value  of  the  exempt  portion  of  an  indivisible 
and  excessive  homestead,  into  court  for  the  use  of  the  debtor, 
and  then  go  on  and  have  the  whole  property  sold  under  his 
execution. 

By  a  provision  still  less  common,  the  homestead  of  a  debtor, 
when  it  cannot  be  segregated  from  its  excess  without  injury,  is 
rented  for  the  benefit  of  the  creditor,  who  is  paid  the  rental 
excessive  of  one  hundred  dollars  per  annum,  in  lieu  of  the 
proceeds  of  sale,  if  the  debtor  will  agree.  But  if  he  will  not, 
the  homestead  is  sold  at  not  less  than  its  appraised  value.^ 

'  In  Ohio,  Giouque's  Rev.  Stat,  sand  dollars'  worth  of  realty  may  be 
§  5439.    While  in  this  state,  one  thou-    set  off  to  the  debtor  (g  5438),  only  five 


THE  debtok's  application.  665 

§  2.  The  Debtor's  Application. 

The  debtor  against  whose  realty  execution  is  about  to  be 
directed  may  then  claim  homestead  therein,  if  he  has  not  al- 
ready selected  one  and  had  it  set  apart  to  hira.  He  may 
make  his  claim  at  any  time  before  the  order  of  sale  has  been 
granted.^ 

The  proper  time  for  a  debtor  to  claim  exemption  is  when  the 
writ  for  execution  goes  into  the  officer's  hands.  It  is  not  al- 
lowable for  him  to  move  upon  premises  afterwards  and  tlieii 
claim  them  on  the  plea  of  occupancy.^  If  he  is  already  in  (jc- 
cupancy,  and  has  his  homestead  rights  established,  he  is  not 
invariably  required  to  make  claim  against  an  execution  at  that 
juncture,  under  penalty  of  forfeiting  his  right.  In  several 
states,  he  may  make  his  application  at  any  time  before  the 
sale.  And,  where  his  homestead  rights  are  vested,  they  can- 
not be  divested  by  the  sale  itself.  He  may,  under  certain  cir- 
cumstances, be  presumed  to  have  voluntarily  relinquished  his 
right  by  failure  to  assert  it.  As  in  ordinary  cases,  it  has  been 
held  that  the  judgment  lien  attaches  when  the  order  of  sale 
is  made.' 

An  exemptionist  cannot  stand  silent  and  see  his  homestead 
sold  under  a  chancery  decree  in  a  case  in  which  he  is  a  party, 
and  afterwards  claim  the  property.  He  must  claim  his  ex- 
emption right  before  sale,  if  he  would  do  so  effectually.  If  he 
stands  silent  and  lets  a  bidder  buy  the  property,  he  cannot 
plead  the  immunity  of  the  property  when  that  purchaser  seeks 

hundred  dollars'  worth  naay  be  saved  pointed  out  by  statute ;  for  the  statute 

to  him  when  the  homestead  is  sold  to  itself  makes  this  reservation.     Under 

enforce  liens  (§  5440).     Persons  enti-  various  circumstances,  tlie  claim  has 

tied  to  homestead  may  take  five  hun-  its  full  effect  though  no  formal  dec- 

dred  dollars'  worth  of  personal  prop-  laration   may   have    been    recorded, 

erty  in  place  of  it  (§  5440).     How  Jarrell  v.   Paynp,  75    Ala.   577;  Zel- 

homestead  of  an  insolvent  debtor  is  nicker  v.  Brigham,  74  Ala.  598;  Keel 

exempted,  see  §§  6348,  6351.  v.  Larkin,  72  Ala.  493,  503;  Farley  v. 

1  Toenes  v.  Moog.  78  Ala.  558.     In  Riordon,  72  Ala.  128 ;  Shirley  v.  Teal. 

Alabama,    the   statutory   method  of  67  Ala.  449;  Fellows  v.  Lewis,  65  Ala. 

claiming  homestead  by  declaration  343;  Randolph  v.  Little,  62  Ala.  396; 

and  recordation  is  notexclusive.  Fail-  Wilson  v.  Brown,  58  Ala.  62 ;  McGuire 

ure  to  declare  and  file  is  not  a  waiver  v.  Van  Pelt,  55  Ala.  344. 
of   the  right,  which   may  be  set  up        2  Freeman   v.   Stewart,  5   Biss.  19 ; 

against  a  levy  or  other  process  though  Stat,  of  Wis.,  §  2983. 
not  previously   claimed  in  the  way        ^  Dickerson  v.  Carroll,  76  Ala.  377. 


GQQ  ALLOTMKNT    TO    THE    DEDTOR. 

to  eject  him.  He  cannot  attack  the  judgment  collaterall3^ 
Even  should  he  attack  it  directly^  and  get  it  reversed  on  appeal, 
"  the  reversal  would  not  affect  a  title  acquired  under  it  while 
it  was  in  force.  "  ^ 

The  debtor  is  entitled  to  opportunity  for  selecting  his  home- 
stead when  execution  is  levied  against  his  property.-  The 
issue  of  the  order  of  sale,  when  he  has  not  had  such  opportu- 
nity, for  any  reason,  ought  not  to  fix  the  judgment  lien  irre- 
movably  upon  all  his  real  estate.  The  want  of  opportunity 
should  be  received  by  the  court  as  good  ground  for  vacating 
the  order,  on  rule.  The  homestead  right  is  not  necessarily 
lost,  even  by  sale  without  allotment ;  but  failure  to  allot  is 
not  every  wiiere  fatal  to  the  sale.'  But  if  there  are  objections 
to  proceedings  had  in  setting  a  homestead  apart  in  view  of 
an  execution  sale,  they  should  be  made  before  the  execution 
of  the  judgment.  They  cannot  be  tolerated  as  a  collateral 
attack  upon  the  judgment.^ 

Though  the  debtor's  failure  to  select  homestead  before  exe- 
cution may  not  be  considered  ever}^ where  as  a  waiver  of  his 
privilege,  he  may  be  confined  afterwards,  in  his  selection,  to 
the  legal  subdivision  of  land  which  includes  his  dwelling.'^ 

When  the  debtor  claimed  too  much,  it  was  not  held  fatal, 
])ut  the  court  could  compel  him  to  confine  himself  to  the  legal 
quantity,  and  could  order  the  sale  of  the  balance.  The  ex- 
empt portion  should  be  adequately  described.  It  is  errone- 
ous to  describe  the  whole  tract,  less  the  homestead,  without 
specification.^ 

Under  a  statute  according  exemption  to  a  certain  amount 
in  case  of  execution  pending,  but  providing  for  no  dedication 
or  recordation  of  homestead  to  families  irrespective  of  indebt- 
edness, the  debtor  is  required  to  furnish  a  list  of  his  property 
to  the  officer  in  charge  of  the  execution,  if  he  means  to  avail 
himself  of  the  exemption.    His  wife  may  furnish  it,  and  point 

1  Miller  v.  Sherry,  3  Wall.  237,  348,  497 ;  Vogler  v.  Montgomery,  54  Mo. 
Swayne,  J.,  case  from  Illinois.  577 ;  Lallement  v.  Poupeny,  15  Mo. 

2  Shacklett  v.  Scott,  23  Mo.  App.     App.  577. 

322  (execution  quashed  for  the  fail-  3  Crisp  v.  Crisp,  86  Mo.  630. 

ure  of  the  sheriff  to  comply  with  ^LaHemont  v.  Detert,  96  Mo.  183. 

statute  — Rev.  Stat  of  Mo.,  g§  3689,  5  Martin  v.  Aultman,  80  Wis.  150. 

2690) ;    State  v.   Emmerson,   74  Mo.  6  Hardy  v.  Sulzbacher,  62  Ala  44 
607 ;  Hombs  v.  Corbin,  20  Mo.  App. 


THE    DKUTOIi's    AI"I'I,I(ATI()N.  667 

out  the  property  to  be  exempted  as  a  homestead,  if  lie  be  ab- 
sent.^ 

A  petition  for  homestead  need  not  aver  the  acquisition  and 
occupancy  of  the  premises  (sought  to  be  set  apart)  before  the 
debt  arose  against  which  the  exemption  is  claimed,  where  the 
statute  does  not  require  such  allegation.  Where  it  does, 
either  expressly  or  impliedly,  the  declarant  should  aver  pres- 
ent occu])ancy  and  the  nature  of  his  possession,-  An  over- 
estimate of  the  value  of  the  property  declared  upon  is  not  fatal, 
if  the  real  value  is  within  the  monetary  limit.'* 

Lost  claim:  After  a  general  assignment  by  a  debtor,  he  can- 
not move  upon  part  of  the  property  which  he  had  never  oc- 
cupied as  a  home,  and  then  successfully  claim  it  as  his  home- 
stead, in  an  attack  upon  the  assignment  made  several  months 
after  its  date.  The  creditor's  rights  relate  to  the  time  of  the 
assignment,  when  there  was  no  reservation  of  homestead.* 
Assignment,  or  conveyance  to  preferred  creditors  without 
reservation,  wiil  be  treated  as  a  general  assignment,  with  its 
consequence  —  the  loss  of  the  homestead  —  where  preferences 
are  disallowed.^ 

Creditors,  asserting  that  their  debtor's  land  had  been  fraud- 
ulently conveyed,  subjected  it  to  execution.  The  debtor 
and  the  grantee  afterwards  sued  to  set  the  execution  and 
sheriff's  sale  aside,  and  homestead  right  in  the  land  was  now 
set  up  — ^too  late,  the  court  said,  since  the  property  had  been 
surrendered.^ 

In  a  suit  to  recover  land,  the  defendant  should  claim  his 
homestead  in  his  pleadings  if  he  wishes  to  retain  his  right  to 
it.''  It  is  too  late  to  claim  exemption  after  the  law  creating  it 
has  been  repealed.^ 

>  State  V.  Melogue,  9  Ind.  196 ;  Aus-  10  Bush,  631 ;  Lisky  v.  Peny.  6  Bush, 

tin  V.  Swank,  9  lud.  109.  515 ;  Cantiill  v.  Risk,  7  Bush,  159. 

-  Boieham  v.  Byrne,  83  Cal.  23.  ''  Snapp  v  Snapp,  87  Ky.  554. 

3Kintc  V.  Gotz,  70  Cal.  236.  f  Wilson   v.  Taylor,  98  N.  C.  275; 

4  McCann  v.  Hill,  85  Ky. 574 ;  Nich-  Hinson  v.  Adiian,  92  N.  C.  121.     See 

ols  V.  Sennitt,  78  Ky.  630.  Hartman  v.   Spiers,   94  N.    C.    150 ; 

6  As  in  Kentucky :  Gideon  v.  Struve,  Flora  v.  Eobbins,  93  N.  C.  38. 

78    Ky.  134;    Wing  v.   Haydon,   10  « Clark  v.  Snodgrass,  66  Ala.  233; 

Bush,  280;  Robbins  v.  Cookendorfer,  Giddens  v.  Williamson,  65  Ala.  439; 

Jenkins  v.  Lovelace,  62  Ala.  271. 


668  ALLOTMENT  TO  THE  DEBTOR. 

§  3.  The  Sherir s  Duty  before  Sale. 

The  claim  having  been  duly  made,  the  sheriff  cannot  pro- 
ceed with  the  execution  until  he  shall  have  complied  with  the 
law  requiring  him  to  ascertain  the  value  and  extent  of  the 
property  subjected  to  the  levy.^  If  he  should  proceed  without 
doing  so,  however,  he  would  be  liable  to  no  damages  in  case 
the  claim  prove  to  be  untenable.^  For  instance,  if  the  deed 
declaring  homestead  was  filed  for  record  after  judgment  had 
been  rendered  against  the  declarant  which  was  a  lien  on  the 
property,  a  homestead  claim  by  the  defendant  in  execution 
would  be  of  no  avail  as  to  that  judgment ;  and  no  damages 
would  accrue  by  reason  of  the  sheriff's  failure  to  regard  the 
claim.*  If  the  officer  in  charge  of  the  execution  should  set  off 
a  homestead  to  a  debtor  whose  claim  was  groundless,  his  re- 
turn showing  such  action  may  be  quashed  upon  motion.* 

Whether  the  sheriff  or  other  officer,  charged  with  the  duty 
of  setting  off  the  homestead,  be  liable  to  damages  or  not  for 
neglecting  to  do  so,  his  neglect  may  affect  the  validity  of  the 
subsequent  proceedings  when  no  discretion  has  been  given  him 
by  statute.  For,  the  law  requiring  the  homestead  to  be  marked 
out,  platted  and  recorded,  it  is  the  duty  of  an  officer  in  charge 
of  an  execution  against  the  owner's  property  to  have  the  mark- 
ing, platting  and  recording  done,  if  the  owner  has  not  done  so 
already.  His  neglect  to  do  so  will  invalidate  the  sale  made 
without  such  compliance  with  the  law.^  But  it  will  not  preju- 
dice the  beneficiaries  in  their  right.''  Where  by  law  the  sher- 
iff should  cause  the  exempt  part  of  property  (which  has  been 
levied  upon  for  debt)  to  be  set  apart  to  the  debtor,''  the  debtor 
may  compel  him  to  do  so;^  and  when  segregation  is  impracti- 
cable, the  debtor  is  entitled  to  the  proceeds  of  the  sale  to  the 
value  of  the  legal  homestead.^ 

1  Vogler  V.  Montgomery,  54  Mo.  Linscott  v.  Lamart,  4G  la.  312 ;  White 
577 ;  Shacklett  v.  Scott,  23  Mo.  App.     v.  Kowley,  46  la.  G80. 

322.  Compare  Casebolt  v.  Donaldson,  ^  Gray  v.  Baird,  4  Lea,  212. 

67  Mo.  308.  7  Tucker  v.  Kenuiston,  47  N.  H.  267. 

2  Shindler  v.  Givens,  63  Mo.  394.  8  Barney  v.  Leeds,  51  N.  H.  253. 

3  J6.;  Lincoln  v.  Rowe,  64  Mo.  138:  ^Norris  v.  Moulton,  34  N.  H.  392; 
State  V.  Diveling,  66  Mo.  375.  Fogg  v.  Fogg.  40  N.  H.  289 ;  Bowman 

4  Creath  v.  Dale,  69  Mo.  41.  See  v.  Smiley,  31  Pa.  St.  225  ;  Miiler's  Ap- 
Straat  v.  Riukle,  16  Mo.  App.  115.  peal,  16  Pa.  St.  300 ;  Dodson's  Appeal, 

SAultman    v.   Howe,    10    Neb.   8;     25  Pa.   St.    234;     Line's   Appeal,    3 


THE    SHEKIFf's    DUTY    1JEF(jRE    SALE.  669 

Pending  an  execution,  the  sheriff  caused  a  homestead  to 
be  set  apart  to  the  debtor,  which  was  immediately  found,  by 
a  jury,  to  exceed  by  one-tliird  the  constitutional  limit  of  a 
thousand  dollars.  The  realty,  including  the  homestead,  was 
then  sold,  and  a  thousand  dollars  reserved  to  the  debtor  out 
of  the  proceeds.  But,  on  appeal,  the  sale  was  held  erroneous. 
There  should  have  been  a  re-allotment.'  If  the  property  was 
not  susceptible  of  division  so  as  to  assign  precisely  property 
enough  to  give  homestead  to  the  limit  prescribed,  how  would 
re-allotment  be  practicable? 

It  is  the  right  of  a  debtor,  when  execution  is  to  be  levied 
upon  his  land,  to  have  existing  incumbrances  taken  into  ac- 
count when  appraisers  are  locating  the  exempt  portion  to 
which  he  is  entitled,  for  his  homestead,  and  fixing  its  dimen- 
sions.2 

To  avail  himself  of  this  right,  he  should  proceed  by  motion 
in  the  case  giving  rise  to  the  execution.  He  cannot  after- 
wards attack  the  apportionment  in  a  collateral  proceeding.^ 
The  setting  apart  b}^  the  appraisers  can  be  done  only  when  he 
has  neglected  to  select  the  homestead  himself.*  After  selec- 
tion by  appraisers  has  been  confirmed  and  the  cause  closed, 
their  action  is  final. ^ 

If  the  valuation  of  the  homestead  (set  apart  for  the  debtor, 
preliminary  to  execution  of  his  other  property)  is  erroneous 
but  not  fraudulent,  a  creditor  who  participates  in  the  pro- 
ceeds of  the  sale  of  the  other  pro])erty  cannot  be  heard  after- 
wards to  deny  the  validity  of  the  sale  on  that  account."  But 
the  valuation  is  not  conclusive  upon  the  debtor  and  therefore 
he  cannot  quash  the  execution  on  the  ground  of  erroneous 
valuation.^     The  report  of  the  appraisers,  pending  execution, 

Grant's  Cas.  (Pa)  198.     The  Pennsyl-  3  Meyer  v.  Nickerson,  101  Mo.  184. 

vania  cases  bold  that  the  debtor  must  *  Same  parties.  100  Mo.  599. 

claim  bis  rights,  as  otherwise  be  will  sLallement  v.  Detert,  9fi  Mo.  182. 

forfeit  them ;  but  the  claim  is  in  time,  ^  Fenwick  v.  Wbeatley,  23  Mo.  App. 

even  on  the  day   of  sale.     Seibert's  641 ;  Rev.  Stat.  Mo.,  J5  2698 ;  Aiistin  v. 

Appeal.  73  Pa.  St.  361.  Loring,  63  Mo.  19 ;  Slagel  v.  Murdock. 

1  Oakley  v.  Van  Noppen,  96  N.  C.  65  Mo.  522 ;  Barney  v.  Leeds.  54  N. 
247 :  Campbell  v.  White.  95  N.  C.  491.  H.  128. 

2  Rev.     Stat    of     Missouri    (1889),  7  straat  v.  Rinkle.  16  Mo.  App.  115; 
%%  5436-7;  Russell  v.  Place,  94  U.  S.  Mo.  Rev.  Stat.,  §  2698. 

«06. 


6T0  ALLOTMENT    TO    TIIK    DKH'I'OR. 

may  be  set  aside  in  a  direct  proceeding.'  It  has  been  hel<l 
that  it  cannot  affect  the  rights  of  those  entitled  to  exemption 
by  statute,  nor  can  its  absence  defeat  the  right.- 

An  order  setting  aside  an  appraisement  and  directing 
anotlier  does  not  exhaust  the  court's  power  to  correct  an  er- 
roneous assignment  of  homestead.'  A  new  set  of  appraisers 
may  be  a])pointed ;  and  it  has  been  held  that  those  suggested 
by  one  party  may  be  selected  by  the  court  without  notice  to 
the  other.*  The  report  of  appraisers  may  be  set  aside  by  a  di- 
rect proceeding,  as  already  stated ;  but  it  cannot  be  done  on 
motion  to  quash  when  the  statute  points  out  a  different  way.'^ 
The  court  cannot  vacate  an  appraisement  unless  the  pleadings 
and  the  proof  bring  the  case  within  the  statute  prescribing  the 
procedure  to  set  it  aside  and  appoint  new  appraisers.^ 

An  erroneous  return  of  the  sheriff,  relative  to  the  setting 
of  a  homestead  apart,  may  be  quashed  on  motion,  when  the 
exemption  cannot  be  claimed  legally  against  the  judgment 
whence  the  execution  was  issued.''  After  the  debtor  has  claimed^ 
the  sheriff  cannot  proceed  upon  the  execution  before  having  the 
property  appraised  to  see  whether  there  is  anything  non-exempt 
to  be  sold.^  But,  failing  to  claim  homestead  in  the  land  against 
which  the  execution  is  levied,  the  debtor  has  been  held  not  en- 
titled to  claim  any  part  of  the  proceeds  of  sale,  under  a  statute 
which  authorized  homestead  in  realty  but  not  in  its  proceeds.^ 

When  there  is  no  just  ground  for  a  homestead  claim,  the 
sheriff's  disregard  of  the  debtor's  application  will  not  vitiate 
the  sale.'"  And  if  there  is  just  ground,  and  the  claim  be  disre- 
garded by  him,  the  sale  is  not  necessarily  void,  since  the  court, 
in  a  suit  on  that  ground  to  eject  the  purchaser,  may  cause' 
homestead  to  be  assigned  to  the  complainant." 

Claiming  homestead  is  the  proper  remedy  for  contesting  a 
levy  and  sale  made  under  an  insufficient  affidavit  of  the  attor- 

1  Scliseffer  v.  Beldsmeier,  9  Mo.  ''Fenwick  v.  Wheatley,  23Mo.  App. 
A  pp.  438.  641. 

2  Hill  V.  Johnston,  29  Pa.  St  363 ;        7  Creath  v.  Dale,  69  Mo.  41. 
Peddle  v.  Holliushead,  9  Serg.  &  E.        8  Vogler v.  Montgomery,  54  Mo.  578; 
277.  Shacklett  v.  Scott,  23  Mo.  App.  322. 

3  Kereher  v.  Singletaiy,  15  S.  C.  » Casebolt  v.  Donaldson,  67  Mo, 
535.  308. 

<  Ex  parte  Ellis,  20  S.  C.  344.  lo  Shindler  v.  Gibbons,  G3  Mo.  394. 

sStraat  v.  Rinkle,  16  Mo.  App.  115.       "  Crisp  v.  Crisp,  86  Mo.  630. 


THE  sheriff's  duty  BEFORE  SALE.  671 

ney  directing  the  execution.'  Neglect  to  point  out  the  property 
which  the  debtor  claims  as  his  homestead,  or  refusal  on  his 
part  to  select  any,  will  ])reclude  him  from  being  entitled  to 
notice  of  his  right  by  the  sheriff,  and<leprive  him  of  ground  for 
quashing  the  levy  for  lack  of  notice.^ 

If  a  homestead  increase  in  value  beyond  the  statutory  limit, 
it  may  be  appraised,  re-assigned,  and  the  excess  exposed  to 
creditors;  if  it  decrease,  the  owner  may  petition  for  a  re- 
valuation and  have  an  addition  to  reach  the  statutory  limit.' 
A  petition  for  appraisement  may  be  passed  upon  without  issue 
formally  joined  thereon.'* 

Distinction  has  been  drawn  between  the  levy  of  an  execu- 
tion after  judgment,  and  that  of  attachment  (which  is  a  pre- 
liminary levy  of  execution,  if  the  attachment  be  sustained  on 
trial),  in  regard  to  the  officer's  duty  to  set  apart  a  homestead 
for  the  debtor.'^  When  the  contingent  lien,  created  by  attach- 
ing, has  been  matured  to  a  ]5erfect  lien  by  judgment,  so  that 
the  property  liable  may  be  sold  under  a  venditioni  exponas^ 
the  court  may  then  separate  the  exempt  portion  from  that 
which  has  been  subjected  to  the  attachment  lien.** 

The  quantity  and  value  may  be  ascertained  by  appraisers, 

1  Brantley  v.  Stephens,  77  Ga.  467.  bility  of    the    homestead    property. 

^  Meyer  v.  Nickerson,   100  Mo.  599.  Stone  v.  McCann,  79  Cal,  460. 

3  Beckner  v.  Rule,  91  Mo.  62 ;  Stub-  &  State  v.  Mason,  15  Mo.  App.  141, 

blefield  v.  Graves,  50  111.  1 10 ;  Walters  in  exposition  of  Mo.  Rev.  Stat.,  §§  2689 

V.  People,  21  111.  178;  Estate  of  De-  to  2692,  held  that  the  sheriff 'is  not 

laney,  37  Cal.  180 ;  McDonald  v.  Bad-  authorized  to  set  homestead  apart  on 

ger,  23  Cal.  393.     Contra:  Richards  attaching.    State  v.  Shack lett,  37  Mo. 

V.  Nelms,  38  Tex.   447;   Walker    v.  284;  State  v.  Moore,  19  Mo.  371 ;  State 

Darst,  31  Tex.  686.  v.  Powell,  44  ]\Io.  438 ;  Berry  v.  Buck- 

*By  the  California  Civil  Code,  there  hart,    1    Mo.   418.  margin;   Kean  v. 

is  no  authorization  for  demurring  to  Newell,  1  Mo.  754,  margin. 

or  answering  a  petition  for  the  ap-  ^Homestead  may  be  claimed  by  the 

praisement  of  a  homestead.     When  debtor  after  judgment,  in  Arkansas 

a  copy  has  been  served  on  the  claim-  (Irwin  v.  Taylor,  48  Ark.  224),  when 

ant  of  the  homestead  two  days  before  the  case  was  one  of  attachment  be- 

the  hearing,  proof  of  notice  and  of  fore  a  justice  of  the  peace  who  had 

the  facts  alleged   by  the  petitioner  no  jurisdiction  to  allow  liomestead. 

may  be  made,  and  the  appraisers  ap-  The  property  attached  was  actually 

pointed.     The  claimant  may  oppose  occupied  by  the  debtor,  and  held  not 

but  should  not  file  pleadings.     Final  affected  by  the  levy  of  attachment 

hearing  is  upon  the  report  of  the  ap-  Patrick  v.  Baxter.  42  Ark.  175 ;  Rich- 

praisers,  as  to  the  value  and  divisi-  ardson  v.  Adler,  46  Ark.  43. 


672  ALLOTMENT  TO  THE  DEBTOR, 

and  the  exempt  property  duly  marked  by  commissioners, 
when  the  bounds  have  not  been  previously  defined,  though 
the  right  has  been  reserved  in  a  contract.^ 

When  homestead  has  been  set  apart  by  the  court,  on  a])plica- 
tion,  it  is  still  liable  to  a  proceeding  by  creditors  to  have  it 
appraised  to  ascertain  whether  its  value  exceeds  the  legal  re- 
striction.- If  found  excessive  and  indivisible,  the  court  may 
order  its  sale  that  the  proceeds  to  the  extent  of  the  statutory 
limit  maybe  invested  in  a  new  homestead.  Several  scattered 
lots,  worth  together  no  more  than  the  law  exempts,  may  be 
sold  under  judicial  order,  and  the  proceeds  invested  in  a  com- 
pact home.*  This  is  when  the  homestead  beneficiary  is  a 
debtor.  When  his  homestead  is  plainly  within  the  monetary 
limit,  judicial  designation  is  not  essential  to  exemption.*  This 
is  ascertained  by  appraisement.  An  under-valuation  of  land 
(whether  done  fraudulently  or  ignorantly)  by  appraisers  set- 
ting it  apart  as  homestead  to  a  debtor  may  be  corrected  at 
the  instance  of  a  subsequent  creditor  who  was  not  a  party  to 
the  proceeding.  He  may  have  every  excess,  above  the  al- 
lowed maximum,  subjected  to  his  claim.^ 

When  it  is  the  duty  of  appraisers  to  make  allowance  for  in- 
cumbrances in  estimating  and  laying  off  homestead,  and  they 
neglect  this  duty,  the  proper  remedy  of  the  debtor  is  by  mo- 
tion to  have  the  allowance  made.  He  cannot  attack  the  ap- 
praisers' return  collaterally.^  But  it  is  not  always  the  duty 
of  appraisers  to  make  such  allowance.  The  following  case  is 
illustrative:  A  homestead  was  allotted  by  appraisers.  There 
was  a  judgment  docketed  against  it,  several  subsequent  mort- 
gages recorded,  and  a  bond  for  title  covering  the  homestead 
allotment.  The  excess  above  the  legal  maximum  of  exem])- 
tion  was  levied  upon.  Exceptions  to  the  allotment  were  filed 
some  three  weeks  after  it  had  been  made,  which  did  not  raise 
the  question  wiiether  the  value  exceeded  the  maximum.    The 

»  Crockett  v.  Gray,  31  Kas.  346.  5  London  v.  Yeager  (Ky.),  14  S.  W. 

2  Davenport  v.  Alston,  14  Ga.  271.  966 ;  Gen.  Stat  Ky.,  ch.  38,  art    13, 

s  Georgia  Code,  §  5135;  Harris  v.  §§9,10.  The  monetary  limit  is  $1,000. 

('olquit,  44  Ga.  663 ;  Blivins  v.  John-  «  Meyer  v.  Nickerson  (Mo.),  14  S.  W. 

son,  40  Ga.  297 ;  Cohen  v.  Davis,  20  188 ;  Rev.  Stat  Mo.  (1889),  g§  5436-7 ; 

Cal.  187.  Lallement    v.    Detert    96    Mo.   182; 

*  Dearing  v.  Thomas,   25  Ga.  224 ;  State  v.  Mason,  88  Mo.  232. 
Pinkerton  v.  TumUn,  22  Ga.  165. 


THE    creditor's    CONTESTING    AFFIDAVIT.  673 

exceptions  were  in  time,  but  there  was  no  issue  for  the  court 
to  determine.  As  the  duty  of  the  appraisers  was  confined  to 
the  estimation  and  allotment,  the  rights  of  lienholders  could 
not  be  passed  upon  in  an  appeal  from  the  award  of  the  ap- 
praisers.' There  cannot  be  a  second  allotment,  after  the  ap- 
praisers' return  has  been  registered  and  the  time  for  excepting 
has  expired,  even  under  a  judgment  docketed  after  the  first 
allotment  was  made.^ 

The  affidavit  of  the  judgment  debtor,  to  contradict  the 
sheriff's  return  that  the  commissioners  summoned  to  lay  of!" 
the  homestead  were  freeholders,  is  not  sufficient  to  overcome 
the  return.  Presumption  favors  the  sworn  officer's  act  done  in 
the  line  of  his  duty.  To  remove  it,  there  must  be  something 
more  than  the  affidavit  of  an  interested  party ;  there  must  be 
satisfactory  proof  of  the  falsity  of  the  return.'- 

§  4.  The  Creditor's  Contesting  Affidavit. 

The  sheriff  in  char^i'e  of  an  execution  is  not  bound  to  resrard 
a  recorded  claim  for  exemption,  though  there  be  no  affidavit 
contesting  it,  if  the  writ  shows  it  to  be  invalid.*  But  if  such 
claim  be  prima  facie  valid,  the  creditor  must  make  the  con- 
testing affidavit,  for  it  will  prevent  execution  while  remaining 
unchallenged.^  Should  the  sheriff  not  levy  the  execution  after 
the  creditor  has  made  his  affidavit  to  contest  the  validity  of 
the  debtor's  claim  of  intervention,  he  will  not  impair  the  cred- 
itor's judgment  lien."  Simply  pleading  denial  of  homestead, 
with  the  affidavit,  raises  the  issue  between  the  creditor  and 
the  debtor;  the  contest  is  between  the  execution  and  the 
exemption;  and,  under  such  issue,  without  more  formal  or 
minute  pleading,  evidence  may  be  introduced  to  determine 
the  contest.^     When  the  contest  has  been  raised,  the  defend- 

1  Aiken  V.  Gardner,  107  N.  C.  236;  &  Block  v.  George,  83  Ala  178: 
Thornton  v.  Vanstory,  107  N.  C.  331 :  Same  parties,  70  Ala.  409 ;  Clark  v. 
Gulley  V.  Cole,  102  N.  C.  333.  Spencer,  75  Ala  49 ;  Abbott  v.  Gil- 

2  Thornton  v.  Vanstory,  supra;  Ray  lespy,  75  Ala.  180 ;  Block  v.  Bragg,  Q^ 
V.  Thornton,  95  N.  C.  571 ;  Gulley  v.  Ala.  291. 

Cole,  supra,  and  96  N.  C.  447.  e  Beckert  v.  Whitlock,  83  Ala.  123. 

3  Mooney  v.  Moriarty,  36  111.  Ap.  "  Lehman  v.  Warren,  53  Ala.  535 ; 
175.  Planters',  etc.  Bank  v.  Willis,  5  Ala 

4  Ex  parte  Barnes.  84  Ala  540 ;  Mc-  770 ;  Beckert  v.  Whitlock,  83  Ala  123. 
Laren    v.    Anderson,    81    Ala    106; 

Sheffey  v.  Davis,  60  Ala.  548. 
43 


674  ALLOTMENT  TO  THE  DEBTOR. 

ant  is  entitled  to  notice.'  If,  without  waiving  this  right,  he 
appear  to  ask  judgment  on  his  claim  of  exemption,  the  plaint- 
iff may  demand  a  nonsuit.-  The  contest  must  be  decided  be- 
fore the  sheriff  can  go  on  with  the  sale.  If  the  party  seeking 
to  subject  the  homestead  to  execution  does  not  answer  the 
claim  of  intervention  within  the  legal  delay,  he  loses  his  right 
and  the  levy  must  be  discharged." 

Burden  of  proof:  Where  the  legal  presumption  favors  ex- 
emption, the  creditor  seeking  to  subject  real  property  to 
execution  must  show  that  his  claim  is  an  exceptional  one  to 
those  which  exemption  affects,  and  that  the  property  levied 
upon  is  necessary  to  the  satisfaction  of  the  debt  because  of  the 
debtor's  lack  of  other  liable  property.*  But,  as  a  general  rule, 
the  party  claiming  exemption  assumes  the  burden  of  proof. 
If  he  attack  a  sale  on  the  ground  that  his  exemption  right  is 
involved,  he  must  make  such  allegations  as  to  the  value 
of  the  property  as  are  necessary  to  show  its  exemption  as  a 
homestead.'  And  what  is  necessary  to  be  alleged  by  him 
must  be  proven  by  him,  as  a  matter  of  course.  Not  only  the 
value  of  the  property,  but  all  other  facts  essential  to  the  sup- 
port of  his  claim  to  homestead,  must  be  set  forth  and  estab- 
lished. 

Even  where  his  homestead  right  is  set  up  by  him  when  he 
is  in  the  capacity  of  defendant,  he  bears  the  onus  of  proving 
his  rights  against  presumptions  to  the  contrary.  For  instance, 
the  burden  is  on  the  defendant  to  show  that  no  homestead 
was  allotted  before  sale  under  execution,  after  the  plaintiff 
has  shown  his  title  by  the  sheriff's  deed  as  purchaser  at  such 
sale,  in  his  suit  to  recover  possession,  unless  the  fact  of  non- 
allotment   otherwise  appears;^  as  by  admission  of  parties.^ 

1  Mead  v.  Larkin,  66  Ala.  87.  the  debt  is  of  a  class  excepted  f  i-om  ex- 

2McAbee  v.  Parker,  83  Ala.  169,  in  emption  by  the  constitution.  And  he 

exposition  of  §§  2830,  2836,  2838,  of  must  specify  the  class.     It  is  too  late 

Alabama  Code  of  1876.     In  Alabama  to    make  the  oath  after  the    levy, 

the  contest  must  be  tried  in  the  circuit  Brantley    v.  Stephens,   77  Ga.   467; 

court     Farley   v.   Riordon,   72  Ala.  Ga.  Code,  §  2028. 

128.  6  Helfenstein  v.  Cane.  3  la.  287,  and 

3  Block  V.  Bragg,  68  Ala,  291.  6  la.   374;  Boot  v.   Brewster,  75  la. 

*  A  plaintiff,  before  having  a  home-  631. 

etead  levied  upon   in  Georgia,  must  *>  Mobley  v.   Griffin,  104  N.  C.  112; 

make  affidavit  that  the  debtor  has  no  Wilson  v.  Taylor,  98  N,  C.  275. 

other  property  subject  to  levy,  and  '  McCracken  v.  Adler,  98  N.  C.  400. 
that  it  is  liable  to  execution  because 


CONFIRMATION    BY    THE    COUKT.  675 

The  fact  may  not  appear  of  record,  nor  the  contrary ;  the  rec- 
ord may  disclose  nothing,  jpi'o  or  con;  presumption  would 
favor  the  legality  of  the  sale :  therefore,  the  defendant  who 
has  ])leaded  the  omission  to  allot  homestead  must  su])))ort  his 
plea  by  testimony.  The  onus  is  on  the  homestead-holder  to 
prove  such  facts  as  certainly  bring  him  within  the  protection 
of  the  law,  when  he  sets  up  his  homestead  exemption  against 
the  foreclosure  of  a  morto^ao^e  which  he  has  iriven.^ 

Evidence  aliunde  is  admissible  to  show  that  the  debt  was 
contracted  before  homestead  acquisition,  when  the  judgment 
itself  does  not  show^  that  fact.-  The  proof  of  the  antecedency 
is  essential  to  the  fastening  of  the  judgment  lien  upon  the 
homestead  as  against  a  purchaser  without  notice.'  Any  pur- 
chaser takes  free  from  judgment  lien  when  the  debt  is  neither 
antecedent  nor  otherwise  affected  by  exemption,  since  no  lien 
attaches  to  the  homestead.* 

§  5.  Confirmation  by  the  Court. 

The  debtor,  being  entitled  to  a  certain  exemption  of  realty 
as  the  homestead  of  himself  and  family;  and  having  failed  to 
select  it  and  have  it  set  apart  before  judgment,  and  now 
claiming  it  in  court,  is  entitled  to  have  judicial  action  upon 
his  claim  when  it  is  disputed.  While  it  is  the  sheriff's  duty 
to  see  to  the  matter  as  an  executive  officer  charged  with  the 
execution;  and  while  it  is  the  appraisers'  or  commissioners' 
duty  to  lay  off  the  lands  in  proper  quantity  and  to  the  ulti- 
mate of  the  value  permissible,  it  remains  for  the  court  to  de- 
cide any  controverted  matter  duly  brought  before  it,  and  to 
confirm  the  allotment  made.  The  court  may  assign  the  home- 
stead.^ A  homestead  assigned  by  the  court  for  the  defend- 
ant and  his  family,  in  a  suit  involving  land  w^hich  included  the 
residence  occupied  by  him,  must  be  to  the  full  quantitative 
limit  if  the  land  equals  or  exceeds  that  amount.®    To  that  ex- 

1  Symonds  v.  Lappin,  82  lU.  213 ;  »  Crisp  v.  Crisp,  86  Mo.  630. 

Asher  v.  Mitchell,  92  111.  480.  6  Talbot  v.  Barager,  37  Minn.  208 ; 

2Delavan    v.    Pratt,    19    la.    429;  Coles  v.  Yorks,  36  Minn.  388;  Coles 

Phelps  V.  Finn,  45  la  447.  v.  Yorks,  31  Minn.  213 ;  North  Star 

3  Higley    v.    Millard,  45    la.    586 ;  Iron  Co.  v.  Strong,  33  Minn.  1.     The 

Kimball  v.  Nilson,  59  la.  638.  limit  is  eighty  acres  in  Minnesota. 

*  Cummings  v.   Long,    16  la.  41 ; 
Lamb  v.  Shays,  14  la.  567. 


676  ALLOTMENT  TO  THE  DEBTOR. 

tent,  a  mortgage  nominally  covering  the  whole  property  is 
inoperative.^  But,  though  signed  by  the  husband  alone,  it  is 
good  for  the  rest;  ^  yet  the  setting  apart  of  the  exempt  por- 
tion is  essential  to  the  validity  of  the  foreclosure.'  The  right 
of  the  owner  to  select  his  exempt  portion  from  a  tract  larger 
than  that,  and  including  it,  does  not  leave  the  whole  open  to 
exemption.* 

A  homestead  allotment,  made  in  a  bankrupt  court,  was  held 
to  be  efficacious ;  it  being  in  value  and  extent  such  as  is  pre- 
scribed by  state  law  where  the  allotment  was  made.^  After 
a  discharge  in  bankruptcy,  a  new  promise  to  pay  may  be  sued 
upon  and  prosecuted  to  judgment;  but  the  judgment  would 
not  bear  a  lien  on  the  homestead.^ 

"When  the  debtor  is  entitled  to  have  a  homestead  of  a  thou- 
sand dollars'  worth  of  realty  allotted  to  him  before  the  sale  of 
his  lands  under  execution  ^  (subject  to  be  set  aside,  however, 
for  fraud  or  irregularity),^  such  allotment  legally  made  and 
confirmed  becomes  final.  It  cannot  be  re-allotted  at  the  in- 
stigation of  another  judgment  creditor  who  was  a  creditor 
when  the  homestead  was  thus  set  apart,  unless  for  the  causes 
above  mentioned.  It  is  intimated  that  creditors  may  have 
some  equitable  remedy,  however,  if  the  property  should  sub- 
sequently appreciate  in  value  above  the  monetary  homestead 
limit.® 

By  the  statute  above  cited,  exceptions  to  the  allotment 
must  be  filed  in  the  clerk's  ofiice  of  the  superior  where  the 
allotment  was  made,'"  for  it  cannot  be  collaterally  attacked.'^ 
Omission  of  the  date  of  the  allotment,  in  the  report  of  the 
appraisers,  is  not  a  fatal  error.'^    Allotment  should  be  specific 

1  Coles  V.  Yorks,  28  Minn,  464.  ePraley  v.  Kelly,  88  N.  C.  227; 
Sale  void.  Mohan  v.  Smith,  30  Minn.  Henly  v.  Lanier,  75  N.  C.  172 ;  Horn- 
259.  thai  V.  McRae,  67  N.  C.  21. 

2  Wallace  v.  Harris,  32  Mich.  380 ;  7  Const,  of  North  Carolina,  art  IV; 
Van  Horn  v.  Bell,  11  la.  465.  Code  of  North  Carolina,  §§  501-524. 

3  Kipp  V.   Bullard,   30    Minn.    84 ;        8  i;,.,  §  523. 

Black  V.  Lusk,  69  111.  70;  Bolton  v.  »Gulley  v.  Cole,  96  N.  C.  447. 

Landers,   27  Cal.    104;   Ferguson  v.  ^  McAuley  v.  Morris,  101  N.  C.  369 ; 

Kumler,  27  Minn.  156.  Code  North  Carolina,  §§  504-507. 

*  Ferguson    v.   Kumler,  27    Minn.  n  Code,  §  519 ;  Welch  v.  Welch,  101 

156.  N.  C.  565 ;  Burton  v.  Spiers,  87  N.  C. 

5  Windley  v.  Tankard,  88  N.  C.  223 ;  87 ;  Spoon  v.  Reid,  78  N.  C.  244. 

Lamb  v.  Chamness,  84  N.  C.  379.  i^  Beavans  v.  Goodrich,  98  N.  C.  217. 


COSTS   IMPAIRING    CONTRACT.  677 

and  in  severalty.^  Bounds  need  not  be  laid  off  by  course  and 
distance.^ 

Wlien  allotment  has  been  legally  made,  and  the  tune  for 
objection  has  expired,  and  the  appraisers'  return  registered, 
no  second  allotment  made  by  another  appraisal  (at  the  instance 
of  a  judgment  creditor)  can  be  allowed.  His  judgment  may 
have  been  rendered  and  docketed  after  the  homestead  was 
laid  olf,  but  the  circumstance  will  not  alter  the  case.  By 
filing  his  objections  to  the  appraisers'  return,  and  tendering 
evidence  to  prove  that  the  land  assigned  by  them  to  the  debtor 
exceeds  a  thousand  dollars  in  value  (the  maximum  in  the 
state),  he  cannot  raise  an  issue  for  the  jury.' 

An  appeal  from  appraisers  (whose  duties  are  confined  to 
valuation  and  allotment  and  fixing  bounds)  does  not  take  up 
the  equities  of  the  contending  parties  with  it;  and  the  court 
cannot  pass  upon  them.''  But  an  order  setting  aside  a  home- 
stead is  api)licable ;  and  it  is  held  that  appeal  is  the  only  rem- 
edy when  the  order  is  wrongful,  in  the  absence  of  fraud.' 

§  6.  Costs  Impairing  Contract. 

A  debt  was  contracted  prior  to  the  enactment  of  a  statute 
requiring  the  allotment  of  homestead  out  of  property  exceed- 
ing the  debt  in  value,  before  execution  sale  of  the  debtor's 
real  estate  could  be  had.  It  was  held  that,  as  the  expense  of 
the  allotment  diminished  the  value  of  the  creditor's  right,  the 
statute  impaired  his  remedy."  The  right  of  a  creditor  by  con- 
tract to  the  remedy  for  the  recovery  of  the  debt  due  him,  ex- 
isting at  the  time  of  contract,  is  a  vested  right.  It  cannot  be 
constitutionally  taken  from  him  without  the  substitution  of 
another  remedy  equally  efficacious ;  and  the  substituted  one 
would  not  be  so,  if  tending  to  diminish  the  value  of  the  debt 

1  Campbell  v.  White,  95  N.  C.  491.  Proc.   (Cal.),   §  963  (3) ;  Kearney  v. 

2  Ray  V.  Thornton,  95  N.  C.  571.  Kearney,  73  Cal.  591. 

3  Thornton  v.  Vaustory,  107  N.  C.  ^Long  v.  Walker,  105  N.  C.  99  (cit- 
331 ;  GuUey  v.  Cole,  102  N.  C.  333 ;  ing  Bronson  v.  Kinzie,  1  How.  (U.  S.) 
Ray  V.  Thornton,  95  N.  C.  571 ;  Code  311 ;  Carson  v.  Arkansas.  15  How. 
of  N.  C,  ch.  10.  (U.  S.)  513 ;  Evans  v.  Montgomery,  4 

« Aiken  v.  Gardner,  107  N.  C.  236;  Watts  &    S.    (Pa.)  218;   Oatman   v. 

GuUey  v.  Cole,  103  N.  C.  333.  Bond,  15  Wis.  28 :  Mundy  v.  Muuroe, 

sGruwcll  V.  Seybolt.  83  Cal.  7;  Es-  1  Mich.  76).  and  differing  from  Mor- 

tate  of  Burns,  54  Cal.  233;  Code  Civ.  risou  v.  Watson,  101  N.  C.  340. 


678  ALLOTMENT   TO    THE   DEBTOR. 

due  him.  It  was  inferred  from  these  premises  that  the  require- 
ment that  homestead  shoukl  be  allotted  before  execution, 
with  liability  to  have  the  sale  of  real  estate  worth  more  than 
the  homestead  limit  declared  void  in  the  absence  of  such  prior 
allotment  (which  requirement  was  made  after  the  contract), 
was  an  impairment  of  the  creditor's  remedy  by  reason  of  the 
additional  burden  of  costs  that  it  imposed.* 

"  The  touchstone,  for  testing  the  constitutionality  of  a  stat- 
ute requiring  a  pre-existing  creditor  to  pay  for  the  appraise- 
ment and  allotment  of  .exemptions  to  his  debtor  before  he  can 
cause  a  levy  to  be  made  upon  the  property  of  the  latter,  is 
found  in  the  question  whether  the  enforcement  of  the  law 
throws  the  slightest  impediment  in  the  wa_y  of  the  collection, 
or  in  the  slightest  degree  diminishes  the  value  of  the  claim 
below  what  it  would  have  been  if  no  such  trouble  and  ex- 
pense were  incident  to  the  sale."  ^  "  One  of  the  tests  that  a 
contract  has  been  impaired  is  that  its  value  has  by  legislation 
been  diminished."  *  "  The  rule  seems  to  be  that  in  modes  of 
proceeding  and  forms  to  enforce  the  contract,  the  legislature 
has  control  and  may  enlarge,  limit  or  alter  them,  provided  it 
does  not  deny  a  remedy  or  so  embarrass  it  with  conditions 
and  restrictions  as  seriously  to  impair  the  value  of  the  right."  * 

The  creditor's  right  to  the  existing  remedy  at  the  time  the 
debtor  takes  the  obligation  is  a  vested  right  which  the  legis- 
lature may  modify  but  cannot  take  away  or  impair.^  The 
unconstitutionality  of  exempting  homesteads  from  debts  an- 
terior to  the  passage  of  the  exemption  law  being  because  of 
its  impairment  of  contracts,  the  courts  came  to  hold  that  any- 
thing which  renders  the  debt  less  valuable  is  unconstitutional.® 

1  Long  V.  Walker,  105  N.  C.  90,  re-  80  N.  C.  183 ;  Earle  v.  Hardie,  80  N.  C. 

vieunng  Morrison  v.  Watson,  101  N.  C.  177 ;  Barrett  v.  Eichardson,  76  N.  C. 

340 ;  McCanless  v.  Flinclmm,  98  N.  C.  439. 

858;  Arnold  v.  Estes,  92  N.  C.  162;  ^ Long  v.  Walker,  supm. 

Lowdermilk  v.  Corpening,  93  N.  C.  3  Edward  v.  Kearsey,  96  U.  S.  600. 

333;  Albright  v.  Albright,  88  N.  G  ^  Tennessee  v.  Sneed,  96  U.  S.  69. 

238;  Wyche  v.  Wyche,  85  N.  C.  96;  »  Memphis  v.  United  States,  97  U. 

Grant  v.    Edwards,    86    N.    C.   513;  S.  895;  Const.  U.  S,  art.  1,  §  10. 

Wilson  V.  Patton,  87  N.  C.  318;  Me-  6  The  section  2,  article  10,  of  tho 

bane  v.  Layton,  89  N.  C.  396;  Miller  North  Carolina  constitution  of  1868 

V.  Miller,  89  N.  C.  403;  Corpening  v.  was  declared  void  (and  the  statutory 

Kincaid,   83  N.   C.   203;    Carlton  v.  method  of  carrying  it  out  fell  with 

Watts,  83  N.C.  313;  Gamble  v.Rhyne,  it),  so  far  as  exemption  from  debts 


COSTS    IMPAIRING    CONTRACT.  079 

There  is  danger  that  the  doctrine  of  impairing  contracts 
by  rendering  remedies  more  costly  than  they  were  when  the 
contracts  were  made,  may  be  whittled  to  a  point  too  fine. 
The  "  touchstone "  given  us  in  the  latest  of  the  above  cited 
cases:  "Whether  the  enforcement  of  the  law  throws  the 
slightest  impediment  in  the  way  of  the  collection,  or  in  the 
slightest  degree  diminishes  the  value  of  the  claim?  "  may  some- 
times be  found  too  sensitive  for  practical  purposes  of  business. 
Legislatures  have  the  right  to  change  remedies;  and  a  change, 
which  makes  but  a  slight  difference  to  the  creditor  whose 
claim  is  for  thousands  of  dollars,  ought  not  to  affect  the  stat- 
utory modification  of  remedy  with  unconstitutionality.  Stat- 
utes should  be  understood  with  reference  to  business  habits, 
and  the  usual  margin  given  for  unforeseen  expenses  when  con- 
tracts are  made.  No  investment  can  be  made  with  prior  cal- 
culation of  profit  to  a  penny.  The  impairment  of  a  contract 
must  be  material  to  render  it  void,  as  the  highest  court  has 
repeatedly  held.^  When  costs  are  trifling  in  amount  so  that 
they  do  not  affect  the  creditor's  remedy  materially,  they  are 
not  an  unreasonable  incident  of  the  modification  of  it.'^ 

In  the  case  prescribing  the  test-rule,  judgment  was  obtained 
for  a  hundred  and  fifty  dollars,  with  ten  more  for  costs, 
against  a  householder  and  his  wife,  on  a  debt  antedating  the 
time  of  exemption,  and  therefore  it  could  be  executed  against 
their  homestead.  The  defendants  paid  the  judgment,  less  the 
costs.  Therefore,  their  land,  found  by  the  jury  to  be  worth 
$1,900,  was  sold  to  pay  the  costs ;  and  it  was  bought  at  $20. 
This  resulted  from  the  refusal  of  the  court  to  enforce  the  stat- 
ute requiring  allotment,  on  the  ground  that  the  expense  of  al- 
lotting might  impair  the  creditor's  remedy.     The  dissenting 

antecedent  to  the  homestead  act  and  Butler  v.  Stainhack,  87  N.  C.  216 

allotment  of  homestead  before  execu-  Keener  v.   Goodson,   89  N.  C.  273 

tion  sale  were  authorized.     This  was  McCracken  v.  Adler,  98  N.  C.  400 

to  conform  to  the  decision  of  Edward  N.  C.  Code,  §g  502,  524 ;  Acts  of  1879, 

V.  Kearsey,  supra,  on  the  impairing  ch.  256;  Const.,  art  4,  §  8. 

of  remedies.      Earle  v.    Hardie,    80  i  Allen  v.  Louisiana,  103  U.  S.  80 ; 

N.  C.  177 :  Gheen  v.  Summer,  80  N.  C.  Packet  Co.  v.  Keokuk,  95  U.  S.  80 ; 

187 ;  Cheatham  v.   Jones,  68  N.   C.  Austin  v.  Aldermen,  7  Wall.  694. 

153 ;  Burton  v.  Spiers,  87  N.  C.  87 ;  ^  Louisiana  v.  New  Orleans,  102  U. 

Cobb  V.  Halyburton.  92  N.  C.  652 ;  S.  203. 


680  ALLOTMENT    TO    THE    DEBTOR. 

opinion  in  the  case  is  elaborate.'  "Without  controverting  the 
decision,  and  without  questioning  that  it  makes  law  in  the 
state  where  it  was  rendered,  the  profession  in  other  states 
may  reasonably  inquire  whether  this  test,  to  determine  the 
constitutionality  of  statutes  affecting  remedies,  is  not  too  nice 
and  exacting.  We  may  not  find  a  flaw  in  the  severe  logic  of 
the  court,  yet  we  may  remember  that  we  ought  not  always 
to  reason  as  minutely  in  law  as  in  an  exact  science. 

1  Long  V.  Walker,  105  N.  C.  90 ;  Dissent  of  Merrimon,  C.  J.,  at  p.  110. 


CHAPTER  XXIII. 


PLEADING  AND  PRACTICE. 


5  1.  Ordinary  Remedies. 

2.  Parties  —  Husband  and  Wife. 

3.  The  Wife  as  Sole  Plaintiff. 

4.  The  Wife  as  Sole  Defendant 

5.  Minor  Children  as  Parties. 

6.  The  Widow  as  a  Party. 

7.  Application  for  Homestead. 

8.  Probate     Orders     Setting     Off 

Homestead. 

9.  Probate  Orders  to  Sell  Home- 

stead. 

10.  Administrator's  Suit  as  to  Cred- 

itors. 

11.  Relative  to  Foreclosui'e. 

13.  Equity  Rule  as  to  Order  of  Sale. 


§  13.  Statutory  Rule  as  to  Order  of 
Sale. 

14.  Claiming     Before     Execution 

Sale. 

15.  The  Preferable  Practice  as  to 

Claiming. 
IG.  Execution  as  to  Occupancy. 

17.  Pleading  in  Attachment  Suits. 

18.  Effect  of  Not  Pleading. 

19.  Rulings  on  Questions  of  Evi- 

dence. 

20.  Injunction  Against  Sale. 

21.  Segregation  and  Other  Proceed- 

ings Before  Sale. 

22.  Judgment  and  Costs  an  En- 

tirety. 


§  1.  Ordinary  Remetlies. 

Pleading  and  practice  in  homestead  cases  differ  little  from 
general  forms  and  usages.  There  is  no  special  system ;  no  ac- 
tions and  defenses  peculiar  to  those  cases ;  no  writs,  and  few 
forms,  prescribed  especially  for  the  acquisition  and  mainte- 
nance of  the  exemption  right.  "With  the  exception  of  statutory 
directions  for  the  declaration  of  homestead,  and  its  recorda- 
tion and  notification ;  for  allotment  to  the  debtor,  the  report 
of  commissioners  and  appraisers  in  laying  off  the  exempt  por- 
tion, for  partition,  and  a  few  other  things,  there  is  little  de- 
parture from  the  general  practice. 

Homestead  legislation,  however,  has  made  innovations  upon 
previously  established  jurisprudence  which  affect  litigation 
and  render  a  chapter  necessary  in  addition  to  the  frequent 
touching  upon  pleading  and  practice  m  the  foregoing  chap- 
ters. Among  these  innovations  is  the  giving  to  the  wife  a  present 
interest  in  her  husband's  dedicated  home,  which  enlarges  her 
rights  as  a  litigant;  the  restraints  put  upon,  or  assumed  by, 
the  owner,  which  diminishes  his  lordship  over  such  property; 


G82  PLEADING    AND    PRACTICE. 

the  privilogc  bestowed  upon  widows  and  minors  which  post- 
pones partition  among  heirs  and  the  final  settlement  of  es- 
tates; the  restrictions  which  partially  take  homesteads  out  of 
commerce  and  affect  the  rights  of  purchasers;  and  other  pecul- 
iarities whicli  have  consequences  upon  homestead  transactions 
and  judicial  proceedings  concerning  them. 

The  principal  innovations  which  affect  the  usual  course  of 
pleading  and  practice  are  the  statutory  denial  of  jurisdiction 
to  the  courts,  in  some  states,  as  to  the  attachment  and  execution 
of  homesteads,  and  the  judicial  rulings,  in  others,  that  plead- 
ing homestead  is  unnecessary  when  the  exemption  is  made 
absolute  by  statute.  Such  departure  from  the  beaten  track, 
like  all  other  attempts  to  reach  the  goal  of  justice  by  a  royal 
road,  leads  ultimately  to  more  roundabout  avenues  of  litiga- 
tion. The  householder  who  stands  by  while  his  house  is  at- 
tacked as  non-exempt  property  is  likely  to  be  obliged  to  vin- 
dicate his  right  ultimately  by  resort  to  some  form  of  action, 
or  to  defend  against  ejectment.  Where  his  neglect  to  plead 
till  after  judgment  and  the  maturity  of  process  against  his 
home  will  be  deemed  acquiescence  on  his  part  and  a  waiver  of 
his  exemption  right,  he  will  not  have  the  trouble  of  asserting 
his  claim  subsequently  by  an  original  action,  or  of  defending 
against  ejectment,  for  his  homestead  will  have  been  lost. 

Whether  the  exemption  be  absolute  or  not;  whether  failure 
to  plead  will  prove  fatal  or  not,  the  better  and  simpler  prac- 
tice is  to  set  up  the  defense  whenever  the  court  has  entertained 
an  action  against  the  homestead.  In  other  words,  the  right  of 
homestead  ought  to  be  pleaded,  as  any  other  right,  when  it  is 
assailed  in  a  court  of  justice  and  the  beneficiary  is  cited  to 
defend.  It  will  not  be  better  for  him  to  stand  silent,  folding 
his  hands  supinely,  relying  upon  the  absoluteness  of  his  right. 
The  theory  somewhat  advocated,  that  he  may  remain  passive 
yet  not  be  affected  by  the  decree;  that  the  court  is  bound  to 
protect  him  whether  he  plead  or  not;  that  he  may  lie  dor- 
mant till  the  plaintiff  has  obtained  judgment  and  has  executed 
the  homestead  under  it,  will  not  work  well  in  practice  —  cer- 
tainly not  in  all  cases.  Take  the  case  of  ejectment.  Passivity 
on  the  part  of  the  homestead-holding  defendant  Avould  result 
in  his  being  put  out  of  doors.  Take  the  case  of  mortgage 
foreclosure.     Non-resistance  to  the  alleged  lien  would  result 


PARTIES  —  HUSBAND    AXD    WIFE.  683 

in  valid  sale  of  the  homestead  and  its  delivery  to  the  purchaser. 
Take  the  case  of  levy  under^.y^.  to  enforce  an  ordiiiaiy  judg- 
ment lien.  Unless  the  defendant  claims  his  right  before  sale  (or 
"when  the  officer  denies  it),  and  resists  the  execution  by  injunc- 
tion or  some  other  remedy,  and  thus  avails  himself  of  the  pro- 
tection which  tiie  law  offers  to  his  family  home,  he  may  soon 
find  that  home  sold;  and  he  will  be  obliged  to  acquiesce,  or 
to  defend  against  ejectment,  or  he  will  be  driven  to  bring  an 
independent  action  to  save  his  right.  In  the  hist  case  —  sale 
under  Ji.  fa. —  the  officer  is  presumed  to  know  the  records,  or 
the  open  occupancy  of  the  property  by  the  houseljolder,  or 
whatever  else  the  law  deems  notice ;  and  therefore  he  may  be 
amenable  to  the  householder.  But  in  the  other  cases,  the  at- 
tack upon  the  homestead  is  made  in  court.  Dons  the  judge 
know  the  records?  Is  he  charged  with  notice  of  the  home- 
stead character?  He  is  the  only  person  presumed  ignorant  of 
notice  and  of  the  records.  In  his  judicial  capacity  he  knows 
nothing  of  them  till  they  have  been  proved  after  issue  joined. 
The  absoluteness  of  the  homestead  right  relative  to  any  par- 
ticular propert}'^  does  not  appear  to  him  till  he  has  been  duly 
informed  by  evidence.  The  most  direct  way,  therefore,  for 
the  exemptionist  to  maintain  his  right  is  by  pleading  or  claim- 
ing it,  even  in  states  w^here  neglect  would  not  be  waiver. 

The  plea  in  defense  may  be  in  a  word,  yet  sufficiently  ex- 
plicit. A  general  denial  may  suffice.  If  the  defendant  has 
nothing  to  allege  affirmatively  —  merely  appears  to  deny  and 
join  issue  —  such  a  brief  plea  may  do;  and  there  is  nothing  for 
him  to  prove  thereunder.^  If  he  has  affirmatively  pleaded 
homestead  in  his  answer,  he  is  not  obliged  to  meet  the  ))laint- 
iff's  rejoinder  by  anticipation.  For  instance,  if  the  plaintiff, 
as  to  the  defendant's  plea  of  homestead,  sets  up  abandonment, 
or  that  the  debt  sued  upon  is  for  improvements  upon  the 
homestead  or  for  the  purchase-price  (against  which  debts  there 
is  no  homestead),  the  defendant  may  then  deny  such  allega- 
tions; but  he  is  not  obliged  to  do  so  in  advance."^ 

§  2.  Parties  —  Husband  and  Wife. 

All  persons  who  are  to  be  concluded  by  the  decree,  in  cases 
involving  homestead,  should  be  made  parties,  excepting  the 

1  Johnson  v.  Adieman,  35  III  265.         2  Stevenson  v.  Marony,  29  111.  532. 


084  PLEADING    AND    PRACTICE. 

mere  privies  of  parties.  If  persons  to  be  concluded  are  in- 
competent to  appear  in  court  by  reason  of  tlieir  minority,  cov- 
erture, insanity  or  any  other  cause,  they  should  be  repre- 
sented by  their  guardians,  curators,  tutors  or  next  friends, 
as  the  statute  of  the  state  where  the  proceedings  are  had 
may  provide. 

Parents  represent  their  children  in  homestead  legislation, 
when  there  is  no  adverse  interest  preventing  it;  and  the  hus- 
band represents  both  his  wife  and  children,  in  many  states. 
In  some,  the  wife  must  be  joined  with  him  as  defendant  in 
homestead  litigation ;  and  it  is  held  that  if  a  homestead  be 
occupied  by  two  men  and  their  wives,  all  four  must  be  made 
parties  to  an  action  of  ejectment  to  recover  the  property.^ 
Each  husband  might  assume  that  he  is  the  head  of  the  family, 
so  as  to  render  it  necessary  for  the  plaintiff  in  ejectment  to 
make  both,  with  their  wives,  parties  to  the  suit,  though  the 
law  does  not  contemplate  two  families  upon  one  homestead. 
The  spirit  of  the  law  is  against  the  crowding  of  tenements 
with  several  families  in  each ;  and  the  letter  of  no  statute 
warrants  either  two  homesteads  ("  business  homesteads  "  aside) 
to  one  family,  or  two  families  to  one  homestead. 

The  wife  is  properly  associated  with  her  husband  as  a  party 
plaintiff  praying  injunction  against  the  collection  of  an  illegal 
tax  upon  land  occupied  by  them  as  their  homestead.-  She 
may  join  him  in  a  bill  to  redeem  the  homestead  from  a  tax 
sale.*  If  the  husband  is  the  sole  owner,  and  should  sue  alone 
as  plaintiff  for  either  of  these  or  any  purpose,  the  rights  of 
the  wife  would  be  secured  by  his  success.  She  does  not  seem, 
therefore,  to  be  a  necessary  party  plaintiff  in  such  suits,  so  far 
as  the  reason  of  the  matter  is  concerned.  The  husband  in 
whom  the  title  is  lodged  cannot  prejudice  his  wife's  homestead 
interest  in  that  property  by  any  action  to  vindicate  that  title, 
or  to  protect  it  from  burdens. 

The  case  is  quite  different  when  a  suit  involving  the  home- 
stead is  brought  against  the  husband.  The  plaintiff  should 
make  the  wife  a  party  defendant  with  her  husband.  Such  an 
action  against  him  alone  cannot  divest  the  wife  of  her  quasi- 
estate  in  the  homestead  wholly  owned  by  her  husband;  for  it 

1  Stoinski  v.  Pulte,  77  Mich.  322.  s  Adams  v.  Beale,  19  la.  61. 

2  Henry  v.  Gregory,  29  Midi.  68. 


PARTIES — ^  HUSBAND    AND    WIFE.  685 

is  a  present  interest  —  not  merely  a  latent  one  —  and  so  re- 
sembles an  estate  as  to  rightly  be  called  one  with  the  qualifi- 
cation above  given;  and  it  can  no  more  be  divested  by  a  judg- 
ment against  the  husband  alone  than  an  incumbrance  upon 
the  property,  held  by  her,  could  thus  be  divested.  It  is  as 
important  (considered  as  a  matter  of  pleading)  that  the  plaint- 
iff should  make  her  a  defendant  as  it  is  when  she  holds  the 
title.  There  can  be  no  doubt  that  the  wife  of  the  homestead- 
holder  should  be  made  a  party  defendant  to  an  action  of 
ejectment  in  which  his  conveyance  of  the  homestead  to  her  is 
brought  into  question  to  test  its  validity.^  And  she  has  been 
held  a  necessary  party  to  any  action  to  eject  her  husband  and 
herself  from  premises  occupied  by  them  as  their  homestead.'^ 
In  such  an  action,  were  she  not  made  a  party,  what  would  be 
the  effect  of  a  judgment  against  the  husband  alone,  even  if  he 
is  sole  owner?  Should  he  be  ejected  and  removed  from  the 
premises,  would  her  right  of  asylum  there  be  cut  off?  The 
very  object  of  giving  her  a  present  interest  in  the  home  would 
be  defeated  by  such  a  result.  If  she  would  have  the  right  to 
stay,  it  would  be  strange  indeed  if  her  husband  could  not  re- 
main with  her;  the  very  purpose  of  the  homestead  legisla- 
tion—  to  conserve  homes  and  protect  families  —  to  foster  the 
conjugal  and  parental  relations  —  would  be  defeated.  But 
would  not  the  judgment  establish  the  fact  that  the  property 
is  not  the  homestead?  It  would  establish  that  fact  as  to 
him  —  not  as  to  her.  The  situation  would  be  novel :  so,  to 
avoid  such,  the  wife  should  be  made  a  party  defendant  with 
her  husband,  in  an  ejectment  suit,  whether  the  title  of  the 
homestead  be  in  him  or  her,  so  that  they  would  both  stay  in 
their  home,  or  both  go  out  together.  If  they  are  joint  ten- 
ants, there  is  additional  reason  why  they  should  join  in  actions 
brought  by  them  or  be  joined  in  actions  brought  against  them. 
There  is  the  same  reason  as  would  be  apparent  in  litigation 
respecting  title  in  joint  tenancy  when  the  holders  are  not  man 
and  wife.^  A  complaint  by  one  spouse  has  been  held  demur- 
rable.*    The  wife  of  one  who  holds  land  in  common  with 

1  Hodson  V.  Van  Fossen,  26  Mich.  68.        »  Dunn  v.  Tozer,  10  Cal.  170 ;  Cook 

2  Cleaver  v.  Bigelow,  61  Mich.  47 ;     v.  Khuk,  8  Cal.  353. 

Davis  etc.  Co.  v.  Whitney,  61  Mich.        ■»  Guiod  v.  Guiod,  14  Cal.  506-7. 
518;    First    N.   Bank  v.  Jacobs,  50 
Mich.  340. 


686  PLEADING    AND    rRACTICE. 

others,  who  has  a  homestead  interest  thereon,  must  be  made 
a  party  to  any  suit  for  partition  and  recognition  of  liens  on 
the  land.^ 

Wliere  it  is  necessary  that  the  wife  be  made  a  party  to  a 
foreclosure  upon  the  homestead,  the  court  will  not  give  judg- 
ment for  the  ])laintiff  where  the  husband  has  appeared  alone 
and  pleaded  homestead  in  defense.  It  has  been  held  that  the 
court,  in  such  case,  will  order  that  she  be  made  a  party .^  She 
may  voluntarily  intervene  and  join  in  the  answer  of  her  hus- 
band, or  plead  sejmrately.^  So,  if  the  wife,  owning  the  home- 
stead, is  sued  alone  in  a  foreclosure  proceeding  against  it,  the 
husband  must  become  a  party;  and  the  rule  is  the  same  as 
that  above  stated  relative  to  the  wife.^  It  does  not  matter 
what  is  the  form  of  suit  which  seeks  to  subject  the  homestead 
property  to  forced  sale.  If  the  occupants  of  such  property 
be  threatened  by  ejectment,  writ  of  entry,  or  any  other  form 
of  attack,  the  homestead  may  be  defended  in  such  way  as  the 
governing  statute  points  out,  or  b}^  answer  as  in  any  ordinary 
case  requiring  answer,  or  by  equitable  plea;  and  the  family 
head  alone,  or  the  husband  and  wife  together,  or  the  wife 
alone  when  her  interest  requires  her  to  act  solely  and  where 
her  coverture  is  no  disability,  may  plead  homestead  in  de- 
fense.^ 

In  an  attachment  suit,  when  the  homestead  has  come  into 
the  legal  possession  of  the  officer  charged  with  the  writ,  both 
husband  and  wife  should  be  made  parties  defendant  if  the 
rights  of  both  are  to  be  concluded,  and  if  the  judgment  is  to 
perfect  the  lien  and  retroact  to  the  date  of  the  seizure  so  as 
to  render  the  lien  a  perfect  one  from  its  incipiency.  The  rea- 
son is  that  her  quasi-e&tnte  would  not  otherwise  be  affected 
by  the  judgment  —  the  proceeding  being  only  a  limited  one 
in  re?n  —  the  res  being  only  his  property  when  her  interests 
are  not  reached. 

Where,  under  the  theory  that  absolute  exemption  relieves 

1  Wheat  V.  Burgess,  21  Kas.  407.  Hughes  v.  "Watt,  26  Ark.  228 ;  Par- 

2  Marks  v.  Marsh,  9  Cal.  96.  dee  v.  Lindley,  31  111.  174 :  Patterson 

3  Moss    V.   Warner,    10    CaL    296;  v.  Kreig,  29  III.  518;  Swan   v.    Ste- 
Lyon  V.  Welsh,  20  la.  578.  phens,  99   Mass.  7  (and   cases  there 

••Thorn  V.  Darlington,  6  Bush,  448.     cited);  Letchford  v.  Gary,  52  Miss, 
s  Williams  V.  Young,  17  Cal.  403;     791. 
McDonald  v.  Badger,  23   CaL   393; 


THE    WIFE    AS    SOLE    PI.AlNTirF.  C87 

from  the  need  of  defense  and  that  the  result  of  judgment  is 
a  mock  lien  to  be  disregarded  with  impunity,  it  is  of  no  im- 
portance whether  the  wife  is  made  a  party  or  not.^ 

Where  disability  of  the  wife  exists,  and  no  rule  requires 
homestead  actions  and  defenses  to  be  by  both,  the  husband  is 
the  proper  party  to  litigate  for  the  interests  of  the  family  and 
the  homestead.2  Whether  a  wife  can  sue  or  defend  alone 
depends  upon  the  further  question  whether  coverture  imposes 
disability ;  and  this,  in  homestead  litigation  as  well  as  in  any 
other.     Each  state  settles  the  question  for  itself. 

§  3.  The  Wife  as  Sole  Plaintiff. 

Where  the  statute  requires  the  action  of  a  court  in  the  es- 
tablishment of  an  original  homestead,  a  wife  may  be  the  peti- 
tioner for  such  judicial  action.'  Her  petition  must  contain  all 
the  averments  necessary  to  the  effectiveness  of  the  husband's 
petition  when  he  makes  application,  and  she  must  also  aver 
ownership,  since  that  would  not  be  presumed  in  her  case.*  And 
she  must  show  from  whose  property  she  prays  to  have  the 
homestead  carved '  —  whether  her  own  or  that  of  her  husband ; 
whether  separately  or  jointly  held.  And  she  should  state  why 
her  husband  does  not  apply  or  join  her  in  the  application. 

A  wife  filed  a  declaration  of  homestead,  upon  property  long 
occupied  by  her  husband  and  herself  as  their  family  residence, 
five  days  after  he  had  confessed  judgment  in  favor  of  a  cred- 
itor. When  the  sheriff  came  to  enforce  the  judgment  lien,  she 
alone  brought  action  against  that  officer  to  compel  him  to  ex- 
haust all  her  husband's  other  property,  personal  and  real,  be- 
fore selling  the  homestead ;  and  her  action  was  sustained.* 
She  could  have  defended  the  homestead  from  any  sale  at  all 
under  an  ordinar}'- judgment  —  she  not  having  been  a  party 
And,  under  a  judgment  on  a  privileged  debt,  she  may  repre 

J  In  Nebraska  under  a  former  stat-  2  Mallon  v.  Gates,  26  La.  Ann.  610 

ute,  the  wile  was  held  not  a  neces-  Thorns  v.  Thorns,  45  Miss.  272. 

sary  party  defendant  in  an  attach-  » Bowen   v.    Bowen,   53    Ga.    182 

ment  suit;    but  the  rule  has  been  Cheney  v.  Rogers,  54  Ga.  168 ;  Smith 

changed  by  a  later  law.     Spitley  v.  v.  Ezel!,51  Ga.  570;  Larencev.  Evans, 

Frost  (Neb.),  15  Fed.  299;  Rector  v.  50  Ga.  216. 

Rottou,  3  Neb,   171 ;  State  Bank  v.  *  Wilder  v.  Frederick,  67  Ga.  669. 

Carson,  4  Neb.  501.  »  Laugford  v.  Driver,  70  Ga.  588, 

•*  Bartholomew  v.  Hook,  23  Cal.  277. 


688  PLEADING    AND    PKACTICE. 

sent  her  interest  so  far  as  to  have  other  property  exhausted 
before  the  homestead,  under  the  statutes  of  several  states. 

A  wife  alone  ma^'-  file  a  bill  in  equity  to  have  homestead  set 
off.  Her  action  is  not  premature  because  no  execution  is 
pending;  and  her  right  to  file  such  bill  has  been  held  not 
affected  by  the  fact  that  her  husband  is  providing  a  home  for 
her.^  If  he  has  had  a  homestead  set  off,  she  would  not  have 
the  right  to  file  such  bill.  She  may  have  a  bill  in  equity  to 
compel  the  specific  performance  of  an  executory  agreement 
made  by  her  husband  to  purchase  a  homestead,  when  she  has 
performed  the  contract.  "  The  wife  of  a  husband,  who  re- 
fuses or  neglects  to  perform  his  contract,  should  be  permitted 
to  do  it  for  him  to  save  her  interest  in  the  homestead,  as  she 
may  redeem  a  mortgage  to  save  her  right  of  dower  in  an 
equity  of  redemption."  "^ 

The  wife  is  a  proper  party  to  a  bill  filed  by  her  husband 
against  a  mortgage  of  the  homestead  which  she  has  not 
signed.'  Or  she  may  sue  alone,  by  the  same  form  of  plead- 
ing, under  the  same  circumstances,  Tvhen  it  is  necessary  for 
her  protection ;  and  it  is  held  necessary  when  the  foreclosure 
of  a  mortgage,  executed  by  the  husband  alone,  is  pending.* 
And  she  may  sue  alone  for  the  protection  of  the  homestead 
when  her  rights  are  in  jeopardy  by  the  neglect  or  refusal  of 
her  husband  to  act ;  and  when  he  is  absent,  or  has  absconded.' 
This  rule  (where  it  prevails)  is  not  peculiar  to  homestead  liti- 
gation.^ But  it  has  not  always  prevailed  when  the  home  was 
endangered  from  such  causes.''  She  may  bring  trespass  against 
an  officer  for  a  wrongful  levy  upon  the  homestead  without 
being  joined  by  her  husband,  the  debtor;^  but  her  husband, 
as  the  head  of  the  family  and  the  debtor,  is  ordinarily  the 
proper  plaintiff  in  such    case.^     The   wife   may  act,  in   the 

•  Comstock  V.  Comstock,  27  Mich.  8  Kelley  v.  Whitmore,  41  Tex.  647. 
97.  6Fullerton  v.  Doyle,   18  Tex.    14; 

2McKee  v.  Wilcox,  11  Mich.  358,  O'Brien  v.  Hilburn,  9  Tex.  297. 

361.  'Murphy  v.   Coflfey,  33  Tex.  508; 

3  Shoemaker  v.  Gardner,  19  Mich.  Green  v.  Lyndes,  12  Wis.  450;  Thorns 

96 ;  Shoemaker  v.  Collins,  49  Mich.  v.  Thorns.  45  Miss.  263. 

595.  SMcWilliams  v.  Anderson,  68  Ga. 

*  Comstock    V.    Comstock,    supra;  772. 

Allen  V.  Hawley,  66  111.  169 ;  Silsbe        9  Zellera  v.  Beckman,  64  Ga.  747. 
V.  Lucas,  36  III.  462 ;  Wing  v.  Crop- 
per, 35  IlL  256. 


THK    WIKK    AS    SOLE    PLAINTIFF.  689 

absence  of  the  husband,  to  save  the  homestead  when  execu- 
tion is  pending,  under  the  authorization  of  some  statutes.* 

Even  when  homestead  has  not  been  pleaded  in  foreclosure 
proceedings,  a  wife  who  was  not  a  party  to  the  mortgage  may 
protect  the  homestead  by  an  original  bill  in  equity,  it  has 
been  held.^  She  may  file  a  cross-bill  against  a  bill  filed  by  the 
plaintiff  in  aid  of  execution  brought  against  her  husband,  to 
protect  a  homestead  on  the  ground  that  she  did  not  sign  the 
mortgage  which  her  husband  gave,  and  which  the  plaintiff  is 
proceeding  to  enforce.* 

Abandoned  by  her  husband,  she  has  been  accorded  standing 
in  court  to  recover  possession  of  her  homestead  after  having 
been  ousted.*  Compelled  by  her  husband  to  sign  an  act  of 
alienation,  she  has  been  accorded  standing  in  court  to  recover 
the  homestead  thus  unwillingly  conveyed  by  her.'  But  it  has 
been  held  that  a  bill  in  equit}^  by  a  married  woman  to  set 
aside  a  homestead  conveyance,  on  the  ground  of  duress  by 
which  her  husband  obtained  her  signature,  could  not  be 
maintained  against  a  purchaser  for  value  without  notice  of 
the  duress.^  The  implication  is  that,  with  notice,  the  pur- 
chaser would  have  been  liable  to  have  such  an  action  broug-ht 
against  him  by  the  wife  as  sole  oratrix. 

Under  a  deed  to  a  wife,  with  the  stipulation  that  the  prop- 
erty was  to  be  held  by  the  husband  as  a  homestead,  contain- 
ing the  habendum,  "  to  her  and  her  heirs  and  assigns,  to  her 
and  their  use  and  behoof  forever,"  it  was  held  that,  upon  ob- 

''f'or  instance,  it  is  provided  in  the  town  (§  2861)  witliout  monetary  re- 

Comp.    Stat,    of    Oklahoma    (1890),  striction,  and  the  chattel  exemptions 

§  4738,  that  "  in  any  case  when  the  are  liberal  (§  2860).    The  wife,  in  thus 

execution  defendant  is  absent  from  acting,  represents  her  absent  husband 

this  territory,  or  shall  absent  himself  with  respect  to  either  kind  of  home- 

froni  his  home,  and  attachment  or  stead  or  to  chattel  exemption, 

execution  shall  be  directed  against  ^  Allen  v.  Hawley,  supra;  Mooers  v. 

his  property,  his  wife  may  make  out  Dixon,  35  III.  208 ;  Hoskins  v.  Litch- 

and  verify  the  schedule  of  his  prop-  field,  31  111.  137. 

erty,  and  claim  and  receive  for  him  *  Wisner  v.  Farnham,  2  Mich.  472. 

the  exemption  provided  in  this  act,  "•  Love   v.  Moj  nehan,   16    111.  277 ; 

and    claim   and    exercise  all    rights  Mix  v.  King,  55  111.  438. 

which  would  belong  to  the  husband  ^  Helm  v.  Helm,  11  Kas.  21 ;  Mix  v. 

were  he  present"    The  homestead  is  King,  66  111.  145. 

limited    to  one  hundred  and   sixty  ^Vancleave  v.  Wilson,  73  Ala,  387. 
acres  in  the  country  or  one  acre  in 
44 


690  PLEADING   AND    PEAOTIOE. 

taining  a  divorce  from  him,  she  was  entitled  to  a  writ  of  entrj 
and  could  recover  possession  from  her  husband  thereunder.' 

Though  the  husband  be  the  sole  owner  of  the  homestead 
title,  his  wife's  right  of  asylum,  or  her  estate  of  homestead, 
is  a  real  interest,  notwithstanding  her  inability  to  transfer  it 
as  property ;  ^  and  she  will  be  allowed  to  protect  it.  It  has 
been  held  on  the  other  hand,  however,  that  her  right  to  liti- 
gate as  sole  party  depends  upon  her  ownership  of  the  home- 
stead in  her  own  right.*  This  view  does  not  now  have  wide 
prevalence.  When  the  homestead  was  on  community  propert}^, 
it  was  objected  (to  a  judgment  recognizing  it)  that  it  could 
not  be  awarded  to  the  wife  alone ;  but  the  objection  was  over- 
ruled —  the  court  assigning  as  a  reason  that  the  wife,  as 
plaintiff,  was  joined  by  her  husband,  and  that  the  judgment 
recited  that  ''^ jplaintiffs  are  entitled  to  recover."  *  But  for  this 
reason  the  objection  probably  would  have  been  sustained. 

§  4.  The  Wife  as  Sole  Defendant. 

The  common-law  rule,  that  a  wife  has  the  disability  of 
coverture,  is  less  relaxed  when  suits  are  to  be  defended  than 
when  they  are  to  be  prosecuted.  The  husband  represents  her 
in  defenses,  so  far  as  her  good  is  concerned ;  that  is,  she  has 
the  benefit  of  results  in  his  favor.  It  is  when  her  interests 
are  adverse  to  his  that  she  may  defend  alone,  or  when  he  fails 
to  act  for  both  and  she  is  authorized  by  court  or  by  statute 
to  appear  alone,  or  when  she  is  a  sole  trader,  or  when  she  is 
sued  alone. 

If  the  homestead,  in  which  she  has  her  ^^^«5^-estate.  is  put 
in  jeopardy  under  circumstances  which  require  her  interfer- 
ence to  save  it,  she  alone  may  defend  it  when  her  husband 
will  not,  or  when  his  and  her  interests  are  adverse. 

Pending  divorce  proceedings,  the  homestead  is  sometimes 
imperiled  so  as  to  warrant  the  wife's  sole  action. 

A  wife,  suing  for  divorce  and  alimony,  holding  the  family 
homestead  in  her  exclusive  possession  while  her  suit  is  pend- 
ing, and  having  her  prospective  estate  of  dower  and  her  pres- 

1  Dunham  V.  Dunham,  128  Mass.  34.        *  Paris,   etc.    Ry.    Co.    v.    Greiner 

2  Jenuess  v.  Cutler,  12  Kas.  516.  (Tex.),  19  S.  W.  564. 

3  Moss  V.   Warner,    10    Cal.    296; 
Marks  v.  Marsh,  9  Cal.  96. 


THE    WIFE    AS    SOLE    DEFENDANT. 


691 


ent  riglit  of  homestead,  may  be  authorized  to  act  independ- 
ently in  a  suit  to  vindicate  a  mechanic's  lien  u])on  the  family 
homestead.  If  such  suit  be  first  instituted  against  the  hus- 
band, and  prosecuted  to  judgment  by  default  against  him  — 
obtained  by  collusion  with  him  —  his  wife  may  become  a  party 
to  have  the  default  set  aside  and  to  defend  against  the  lien. 
The  judgment  may  be  opened  to  admit  her  as  a  new  party  who 
is  affected  by  it.^ 


1  Weston  V.  Weston  (Wis.),  49  N. 
W.  834,  Lyon,  J.:  "While  it  may 
be  true  that  the  statute  does  not 
make  the  wife  a  joint  tenant  with 
iier  husband  of  tlie  homestead,  or 
vest  in  her  an  interest  in  the  fee,  yet 
it  does  confer  upon  her  vahiable 
rights  therein.  It  gives  her  the  right 
of  occupancy  and  enjoyment  thereof 
with  her  husband  as  against  his 
creditors,  and  an  absolute  veto  on  his 
power  to  ahenate  it.  In  case  the 
husband  dies  intestate,  the  home- 
stead descends  to  his  widow  abso- 
lutely, if  he  leaves  no  children  sur- 
viving him,  and  during  her  widow- 
hood if  he  does.  Taylor,  St.  1171, 
§  5.  These  are  additional  to  her 
dower  right,  which  manifestly  is  not 
merged  in  the  homestead  right. 
Should  the  husband  lawfully  de- 
vise the  homestead  to  another,  or 
should  he  die  leaving  children,  and 
his  widow  marry,  she  may  assert  her 
dower  right,  notwithstandmg  the 
premises  were  once  the  homestead  of 
her  husband.  In  Madigan  v.  Walsh, 
22  Wis.  501,  this  court  found  no  diffi- 
culty in  holding  that  an  inchoate 
right  of  dower  is  such  an  interest  in 
lands  as  will  enable  a  married  woman 
to  maintain  an  action  to  set  aside  a 
deed  thereof  to  which  her  signature 
has  been  fraudulently  obtained.  That 
decision,  we  think,  disposes  of  the 
objection  that  Mrs.  Weston  has  no 
such  interest  in  the  premises  affected 
by  the  lien  judgment  as  gives  her  a 
standing  in  court  to  resist  such  judg- 


ment In  addition  to  her  rights  un- 
der the  homestead  laws  and  her  in- 
choate right  of  dower,  she  aJleges 
that  she  is  entitled  to  the  possession 
of  the  premises  pursuant  to  an  inter- 
locutory order  of  the  court  in  the 
divorce  suit  We  infer  that  she  is  in 
possession  by  virtue  of  the  order, 
and  that  such  possession  is  exclusive 
of  her  husband.  Having  these  va- 
rious interests  and  rights  in  the 
premises,  it  would  be  a  reproach  to 
the  law  were  she  denied  a  standing 
in  court  to  defend  them  when  they 
are  fraudulently  and  r  ollusively  as- 
sailed by  her  husband  and  his  kin- 
dred. We  hold,  therefore,  that  Mrs. 
Weston  is  a  proper  party  to  the  lien 
suit  If  not  made  a  party,  probably 
she  might  maintain  an  action  against 
the  plaintiffs  in  the  nature  of  a  suit 
to  redeem,  in  wliich  she  could  con- 
test the  right  of  the  plaintiffs  to  a 
specific  lien  for  any  sum,  or  show 
that  the  judgment  is  for  too  large 
a  sum.  McCoy  v.  Quick,  30  Wis. 
521.  The  learned  counsel  for  the 
plaintiffs  claim  that  the  judgment 
should  not  be  opened  to  allow 
Mrs.  Weston  to  defend  the  action 
if  she  is  not  bound  by  the  judg- 
ment; and  they  cite  in  support 
of  their  position,  Bean  v.  Fisher.  14 
Wis.  57,  and  Gray  v.  Gates,  37  Wis. 
614.  Bean  v.  Fisher  merely  holds 
that  a  judgment  should  not  be  opened 
to  let  in  a  new  party  whose  interests 
are  not  affected  by  it ;  as,  for  ex- 
ample, a  prior  incumbrancer  in  an 


692  PLEADING   AND    PKACTIOE. 

The  court,  treating  her  as  in  possession  of  the  homestead 
under  judicial  order,  while  the  husband  was  excluded,  allowed 
her  to  combat  the  lien  which  he  had  allowed  to  be  prosecuted 
to  judgment  by  his  default.  It  is  intimated  that  she  would 
have  had  standing  in  court  in  a  bill  to  redeem  the  property, 
had  she  not  appeared  in  defense  of  the  suit.  Even  if  her 
homestead  right  was  not  concluded  by  the  judgment  against 
her  husband  alone,  she  would  be  put  to  inconvenience  by  it ; 
she  might  be  driven  to  defend  a  subsequent  action  of  eject- 
ment, or,  if  obliged  to  sue  for  her  rights,  would  be  required 
to  give  security.  If  the  lien  sued  upon  was  a  lawful  prop- 
erty debt,  doubtless  the  homestead  was  bound  for  it;  but  the 
very  question  was  whether  the  lien  was  such;  and,  on  that 
question,  she  had  a  right  to  be  heard  when  her  husband  had 
collusively  permitted  default. 

Though  the  husband  has  done  some  act  which  would  oper- 
ate as  estoppel  to  him  —  such  as  signing  a  mortgage  note  alone 
to  bind  the  homestead  —  an  act  that  would  estop  him  in  some 
states,  though  not  in  all, —  his  wife*  may  yet  defend  against 
the  act,  plead  usury  or  any  other  proper  defense  against  the 
note,  and  thus  save  the  homestead  to  the  family.^  Though  he 
may  have  recognized  ownership  in  another,  she  is  not  neces- 
sarily concluded.  In  an  ejectment  suit  against  a  wife,  who 
claims  the  property  sued  for  as  her  homestead,  she  cannot  be 
denied  her  claim  on  the  ground  that  her  husband  has  acknowl- 
edged himself  to  be  the  plaintiff's  tenant,  in  a  lease,  if  she  has 
shown  all  the  facts  necessary  to  establish  her  right.^ 

§  5.  Minor  Children  as  Parties. 

Minor  children  are  represented  by  their  father,  or  by  both 
father  and  mother  when  they  are  joint-parties,  in  litigation 

action  to  foreclose  a  junior  mortgage,  promptly,  and  obtain  an  injunction 

The  same  rule  was  stated  hypothet-  to  protect  her  possession.    This  would 

ically  in  Gray  v.  Gates,  but  the  case  or  might  require  the  giving  of  secu- 

turned  upon  a  special  statute  of  limit-  rity,  which  she  cannot  be  required  to 

ations     relative     to    opening    judg-  give  if  allowed   to  defend   the  lien 

ments.     We  think   the   interests  of  suit.     .     .     .     See  Read  v.  Sang,  21 

Mrs.  Weston  may  be  affected  by  this  Wis.  678." 

judgment,  if  it  is  allowed  to  stand.  i  Thompson  v.  Pickel,  20  la.  490 ; 

On  a  sale  under  it  she  is  liable  to  be  Campbell  v.  Babcock,  27  Wis,  512. 

excluded  from  the  possession  of  the  2  Dykes  v.  O'Connor  (Tex.),  18  S.  W. 

premises,  at  least  she  may  be  so  ex-  490. 
eluded  unless   she   bring  an  action 


MINOR   CHILDREN    AS    PARTIES.  C93 

iiffoctinG;  the  homestead  as  in  that  relative  to  other  proj^erty 
in  which  they  are  concerned,  and  in  which  their  interest  is  not 
adverse  to  that  of  their  parents.  They  are  beneficiaries  of  the 
homestead,  but  not  indei)enclent  of  their  parents,  and  not  in 
the  same  sense  in  which  their  mother  is  a  beneficiary.  They 
have  no  interest  resembling  an  estate,  or  an  incumbrance  upon 
the  househoulder's  title,  such  as  she  has.  They  have  no  veto 
upon  the  alienation  of  the  homestead  as  she  has.  They  are 
bound  by  the  action  of  their  father  and  mother. 

The  law,  however,  zealously  guards  their  homestead  inter- 
est ;  and,  upon  the  death  of  their  father,  gives  them  standing 
in  court  to  assert  it  through  proper  representatives. 

Minor  children  may  make  application,  through  their  guard- 
ian, to  have  homestead  set  off  to  thcm.^  He  must  aver  his 
official  capacity  and  make  all  the  allegations  necessary  to  show 
the  character  of  the  property,  and  also  aver  the  rights  of  his 
wards.  If  no  guardian  has  been  appointed,  a  trustee  may  be 
designated  to  make  the  application.-  If  one  of  the  parents  is 
sui'viving,  and  the  children  are  living  with  him  or  her  as  mem- 
bers of  the  family,  such  survivor  is  the  proper  person  to  make 
application  for  an  original  homestead,  or  to  regain  a  lost  one. 
A  bill  filed  by  beneficiaries  to  recover  homestead,  without  any 
showing  why  the  head  of  the  family  was  not  a  party,  was  held 
demurrable.*  If  the  wife  alone  is  the  applicant,  she  should 
make  an  averment  of  the  reason  why  her  husband  did  not 
apply;  and  there  is  greater  reason  why  an  application  by 
children,  through  a  representative  other  than  a  parent,  should 
show  wh}^  he  takes  the  place  of  their  natural  guardian. 

All  persons  interested  should  be  made  parties  to  a  proceed- 
ing for  partition,  since  otherwise  they  would  not  be  bound  by 
it.^  There  may  be  partition  of  the  homestead  between  the 
deceased  householder's  widow  and  his  minor  children,  when 

1  Fountain  v.  Hendley,  82  Ga.  616 ;  3  Shattless  v.  Melton,  65  Ga.  464 

Roff  V.   Johnson,   40    Ga.  555 ;    Ga.  *  Ketchin  v.  Patrick,  32  S.  C.  44a 

Const,  of  1868.  In  South  Carolina,  both  partition  and 

■-  RofT  V.  Jolinson,  40  Ga.  555.     The  homestead  cannot  be  claimed  in  the 

appointment  of  the  trustee  is  by  the  same  jn-oceedings.     Williams  v.  Mal- 

superior    court ;    the   application   by  lory,  33  S.  C.  601. 
him   is  to  the  ordinary  or  probate 
judge,  in  Georgia. 


694  PLEADING   AND    PRAOTIOE, 

she  remarries  and  does  not  thus  forfeit  the  right  under  the 
statute;^  and  in  such  case  the  children  are  parties  to  be 
properly  represented. 

A  decree  by  consent  is  not  void  between  the  parties  con- 
senting because  somebody  else  should  have  been  made  a  party, 
or  because  it  does  not  conform  to  the  distribution  asked  in  the 
petition,  or  because  it  joins  causes  which  should  have  been 
kept  separate,  or  because  some  of  the  parties  are  minors  rep- 
resented by  a  guardian  who  also  represents  a  party  whose  in- 
terests are  adverse  to  theirs.  At  least,  it  has  been  held  so ; 
and  also,  that  such  a  decree  is  not  void  for  fraud  as  against 
one  not  guilty  of  fraud  who  gets  less  by  the  decree  than  he 
would  have  been  entitled  to  in  its  absence.^ 

When  a  petition  for  the  setting-off  of  a  homestead  is  made 
to  the  court  by  an  attorney,  it  must  be  verified  by  the  affidavit 
of  his  client  who  is  the  applicant ;  ^  and  if  the  applicant  is  a 
minor,  his  guardian  should  make  the  affidavit. 

In  states  where  real  estate  descends  to  heirs,  and  is  not  ad- 
ministrable,  they  —  not  the  executor  or  administrator  —  are 
the  proper  parties  defendant,  in  a  suit  by  a  vendor  of  the  de- 
cedent to  recover  homestead  purchase-money.*  For,  as  against 
such  suit,  there  is  no  homestead,  and  the  question  is  one  of 
property  only.  True,  the  character  of  the  claim  may  be  de- 
nied in  the  defense ;  and  if  the  debt  is  not  shown  to  be  pur- 
chase money,  the  homestead  interest  is  at  stake.  Still,  the 
heirs,  adult  and  minor,  are  the  parties  interested  as  defend- 
ants. 

The  widow  should  make  the  heirs  parties  to  a  suit  brought 
by  her  for  damages  done  to  community  property  when  half 
the  interest  is  in  her  and  half  in  them.-^ 

If  the  widow  has  illegally  conveyed  the  children's  home- 
stead, ejectment  will  lie,  in  their  behalf,  to  recover  it  after  her 
death  ;^  and  why  not  before? 

1  Brady  v.  Banta,  46  Kas.  131 ;  Miles        3  Roberts  v.  Cook,  68  Ga.  324. 

V.  Miles,  46  N.  H.  261.     The  widow  4  Buckingiiam  v.  Nelson,  42  Miss, 

and  all  the  heirs  are  necessary  parties  417. 

to  a  proceeding  for  a  homestead,  un-  &  Wright  v.  Doherty,  50  Tex.  34. 

der  the  Missouri  act  of  1865.  Murphy  •'Rogers  v.  Mayes,  84  Mo.  520.   Fur- 

V.  De  France,  105  Mo.  53.  tlier  as  to  minor  children,  as  parties, 

2  Schermerhorn  v.  MahaflBe,  34  Kas.  ante,  p.  G48. 
108. 


THE    WIDOW    AS   A   PAETY.  695 

§  6.  The  Widow  as  a  Party. 

The  proper  remedy,  for  either  the  assigninont  or  the  recov- 
ery of  a  widow's  homestead,  is  a  bill  in  equity  where  none  has 
been  provided  by  law.  She  is  not  to  suffer  from  the  failure 
of  the  legislature  to  give  her  a  legal  remedy  when  the  right  of 
homestead  has  been  accorded  her  by  statute.  And  when  she 
has  come  into  the  enjoyment  of  her  homestead,  she  may  pro- 
tect it  .by  bill  in  the  absence  of  a  legal  remedy.  Having  the 
right,  and  the  property  to  which  the  right  relates,  she  is  en- 
titled to  relief  when  either  is  assailed.  Homestead  statutes 
prescribe  no  particular  form  of  bill  for  such  emergencies :  so 
she  may  avail  herself  of  any  proper  pleading  usual  in  chancery 
practice  which  will  lead  to  equitable  relief.'  If  she  is  denied 
her  homestead  right  in  her  late  husband's  property,  by  his 
heirs,  her  remedy  is  by  writ  of  entry ,^  or  by  such  equivalent 
writ  as  the  law  of  any  state  has  authorized  for  her  relief. 
Though  the  guardian  of  minor  heirs  may  have  held,  for  three 
years,  the  possession  adverse  to  her,  she  will  not  be  debarred 
thereby  from  claiming  her  life  estate  of  one-third.  But  if  she 
permanently  left  her  husband  without  cause,  that  fact  may  be 
set  up  successfully  by  the  heirs  against  any  homestead  claim 
on  her  part.* 

When  a  bill  for  partition  and  assignment  of  dower  had  been 
pending  for  several  years,  and  evidence  had  been  adduced 
showing  that  the  widow  was  entitled  to  homestead  as  well  as 
dower,  it  was  held  discretionary  with  the  court  to  allow  the 
bill  to  be  dismissed."* 

When  the  widow  is  in  possession  of  community  property, 
she  is  the  proper  party  to  institute  a  suit  for  damages  done  to 
it ;  but  the  heirs,  owning  half  of  such  property,  are  proper 
j)arties.^ 

As  a  widow  has  all  the  rights  of  litigation  appertaining  to 
2iwj  feme  sole^  it  is  unnecessary  to  dwell  upon  them  here.  Her 
suits  relative  to  homestead  are  usually  with  heirs  or  creditors 

1  Miles  V.  Miles,  46  N.  H.  261 ;  At-  3  Cockrell  v.  Curtis  (Tex.),  18  S.  W. 
kinson  v.  Atkinsou,  40  N.  H.  352.  436 ;   Newland  v.   Holland,   45  Tex. 

2  Mercier   v.  Chace,   9   Allen,  242 ;  589 ;  Sears  v.  Sears,  45  Tex.  557. 
Woodward  v.  Lincoln,  9  Allen,  239 ;  *  Reilly  v.  Reilly  (111.),  36  N.  E.  604 
Lazell  V.  Lazell,  8  Allen,  575  ;  Searle  »  Wright  v.  Doherty,  50  Tex.  34. 

▼.  Chapman,  121  Mass.  19. 


696  PLEA.DING    AND   PRAOTIOE. 

of  the  deceased  husband's  estate.  Her  rights  and  remedies 
have  been  treated  in  previous  chapters.^  There  is,  however, 
a  case  out  of  the  ordinary  which  may  be  of  interest.  The 
owner  of  a  hundred  and  twenty-two  acres  of  hind,  occupied  as- 
his  residence,  died  in  1876,  leaving  an  insane  widow,  who  was 
placed  in  a  hospital  within  two  or  three  months  after  his 
death.  She,  by  her  guardian,  claimed  the  land  as  her  home- 
stead, and  brought  ejectment  against  the  possessor  who  had 
bought  it  at  a  sale  to  satisfy  a  debt  which  had  been  reduced 
to  judgment  six  years  before  the  husband's  death.  The  court 
treated  the  date  of  the  judgment  as  the  time  of  the  contraction 
of  the  debt,  in  the  absence  of  any  evidence  of  the  date  of  con- 
tract."' At  that  time,  the  constitution  of  the  state  fixed  the 
homestead  maximum  at  eighty  acres:  so  the  widow  was  held 
entitled  to  no  more,  and  that  quantity  should  have  been  set 
apart  to  her  before  the  sale ;  but  it  was  not  done.  She  was 
incapable  of  making  selection,  owing  to  her  insanit)''.^  So  the 
court,  as  to  the  homestead  claimed,  denied  the  ejectment,  but 
held  that  her  insanity  and  her  absence  from  the  home  before 
and  after  her  husband's  death  from  this  cause  did  not  bar  her 
claim  to  possession  of  the  tract  till  the  assignment  of  dower, 
nor  bar  her  right  of  dower;  and  it  recognized  the  right  of 
ejectment  on  that  ground.''  But,  pending  the  appeal  from  the 
lower  to  the  supreme  court,  the  insane  widow  died ;  and  there 
could  be  no  revival  by  the  heirs  at  law,  since  her  right  of  pos- 
session (called  quarantine)  died  with  her.     But  her  personal 

1  Chs.  19,  20,  21.  possession,  she  could  either  maintain 

2  On  the  authority  of  Gordon  v.     or  defend    that    possession  by  suit 
Mcllwain,  83  Ala.  247.  _  against  any  and  all  persons  not  show- 

3 The    court  cites    on   this  point:  ing  a  better  title,  and  could  sue  and 

Clark  V.  Spencer,  75  Ala.  49;  Turnip-  recover  the  rents  and  profits  against 

seed    V.    Fitzpatrick,    75    Ala.    297;  any  one  coming  into  possession  of 

Dossey  v.  Pitman,  81  Ala.  381 ;  Block  them  without  right.    Benagh  v.  Tur- 

V.    George,    83    Ala.    178 ;    2    Scrib.  rentine,  60  Ala.  557 ;  Inge  v.  Murphy, 

Dower,  500.  14   Ala.    289;    Shelton   v.   Carrol,  16 

*  Clancy  v.  Stephens,  9  So.  (Ala.)  Ala.  148;  Cook  v.  Webb,  18  Ala.  810; 

522.    The  court  said  that  the  widow's  McLaughlin  v.  Godwin,  23  Ala.  846 : 

insanity  furnished  additional  reason  Oakley  v.  Oakley,  30  Ala.  131 ;  Boyn- 

for  allowing  her  possession  under  the  ton  v.  Sawyer,  35  Ala.  497 ;  Slatter  v. 

statute  [Code  of  1886,  15  1900],  citing  Meek,  35  Ala.  538;  Perrine  v.  Perrine, 

Eslava     v.    Lepretre,    21    Ala.    504.  35  Ala.  644." 
"Having  the  statutory  right  to  the 


APPLICATION    FOR   HOMESTEAD. 


697 


representatives  could  claim  successfully  the  rents  and  profits, 
because  these  are  personalty,  and  the  right  to  them  survives.' 

§  7.  Application  for  Honiostead. 

Housoliolders  ordinarily  declare  upon  their  own  homes  and 
have  them  recorded  as  exempt,  or  simply  occupy  them  as 
family  residences  where  the  statute  of  their  state  requires 
nothing  more  to  constitute  a  homestead ;  but  wliere  the  stat- 
ute provides  for  judicial  action  in  order  to  constitute  it,  there 
must  bo  an  application  to  tiie  court.  Sucli  application  should 
contain  all  the  averments  which  the  court  must  know  in  order 
to  grant  the  petition. 

Family  hcadshij)  is  one  of  the  necessary  allegations.  It 
may  be  averred  of  the  husband,  when  the  application  is  by 
the  wife,  with  the  additional  averment  that  he  has  neolected 
or  refused  to  apply.  It  has  been  held  that  an  omission  to  al- 
lege family  headship  is  incurable  by  parol  evidence  on  the 
trial  of  a  case  based  on  the  application.^  An  equitable  action 
to  recover  a  homestead  was  held  demurrable  because  the 
plaintiffs,  claiming  to  be  beneficiaries  of  the  exemption,  had 
failed  to  show  why  the  head  of  the  family  did  not  join  in 
the  bill.» 


1  Clancy  v.  Stephens,  supra,  citing 
1  Brick.  Dig.,  p.  12.  §§  181,  183; 
Hairston  v.  Dobbs,  80  Ala.  589; 
Chandler  v.  Jost,  81  Ala.  411 ;  Davis 
V.  Curry,  85  Ala.  133.  Further  as  to 
the  widow's  claiming  rents,  see  Mob- 
ley  V.  Andrews,  55  Ark.  323.  Further 
as  to  the  widow  as  a  party,  see  ch. 
XX 

2  Clark  V.  Bell,  67  Ga.  738,  under 
the  Constitution  of  Georgia  (1877). 
See  Hardin  v.  McCord,  72  Ga.  239 ; 
Walker  v.  Thomason,  77  Ga.  682. 
The  application  of  a  wife  for  a  home- 
stead donation  under  the  laws  of 
Texas  (Sayles'  Civil  St.,  art.  3924) 
was  held  to  be  substantially  the  ap- 
plication of  her  husband  as  head  of 
the  family.  McCarthy  v.  Gomez 
(Tex.),  19  S.  W.  999.  The  claim  may 
be  by  the  husband  or  wife,  showing 
that  he  or  she  is  the  head  of  the  fam- 


ily. Eev.  Stat,  of  Arizona  (1887), 
§§  2072-3.  The  declarant  must  be 
the  head  of  a  family  or  the  wife  who 
declares  for  the  benefit  of  herself 
and  her  husband  Deering's  Code 
and  Stat,  of  Cal.,  §  1337  et  seq.;  Rev. 
Stat,  of  Idaho,  §  3035  et  seq.;  Gen. 
Stat,  of  Colorado  (1883),  §  1631  etseq.; 
Col.  Acts  of  1889,  p.  463.  The  selec- 
tion of  the  homestead  may  be  b}'  the 
owner,  husband  or  wife,  etc.  Code 
of  la.,  §  3163  et  seq.  See  Comp.  Stat 
Montana  (1887),  ^§  324,  330 ;  Comp. 
Stat,  of  Neb.  (1889),  ch.  36,  g§  1-8 ; 
Gen.  Stat.  Nev.,  §  539  et  seq.;  Code  of 
Washington,  §  342;  Rev.  Stat  Wyo- 
ming (1887),  S  2780;  and  the  statutes 
of  other  states  and  territories.  Tiie 
provision  as  to  head  of  family  is  al- 
most general. 
sShattless  v.  Melton,  65  Ga.  464 


698  PLEADING    AND   PKAOTICE. 

T^^e  applicant  to  have  homestead  accorded  should  aver  the 
fact  of  his  having  a  family,  though  he  need  not  particularize 
as  to  the  number  of  the  members  or  their  respective  ages. 
The  only  necessary  averment  as  to  the  ages  of  his  children  is 
that  they  are  in  their  minority;  and  that  is  important  when 
the  applicant  has  no  wife  and  he  and  his  children  compose  the 
family.^  The  necessary  fact,  as  to  the  family  averment,  is 
that  he  has  a  family  such  as  entitles  him  to  the  homestead 
privilege.  This  is  essential  because  the  protection  of  families 
is  the  object  of  the  exemption.  It  was  judicially  said  of  a 
homestead  law :  "  The  statute  is  founded  upon  considerations 
of  public  policy,  and  has  introduced  a  new  rule  in  regard  to 
the  extent  of  property  which  shall  be  liable  for  a  man's  debts. 
The  legislature  were  of  opinion,  looking  to  the  advantages  be- 
longing to  the  family  state  in  the  preservation  of  morals,  the 
education  of  children,  and  possibly  even  in  the  encouragement 
of  hope  in  unfortunate  debtors,  that  this  degree  of  exemption 
would  promote  the  public  welfare."  -  Certainly,  family  head- 
ship is  a  condition  of  homestead  exemption  imposed  by  almost 
every  state.  And  the  applicant,  to  have  an  original  home- 
stead set  out  from  his  property  by  the  court,  should  make  al- 
legation of  the  fact  that  the  condition  has  been  observed.^ 

Olonershijy:  Allegation  of  ownership  is  proper  but  not  es- 
sential when  the  husband  is  the  applicant,  since  that  has  been 
held  presumable;  but  it  is  necessary  when  the  wife  is  the  appli- 
cant.* If  the  husband  has  no  creditors,  his  averment  of  owner- 
ship is  immaterial  where  it  might  be  required  of  a  debtor.* 
The  title  must  be  so  alleged  (when  necessary)  as  to  show  pos- 
sessory right,  though  it  may  be  of  the  highest  or  lowest  grade, 
in  fee-simple  or  merely  leasehold.  The  vital  thing  is  to  show 
the  property  such  as  the  family  may  enjoy  without  disturb- 
ance.** 

1  Wilder  v.  Frederick,  67  Ga.  669 ;  after  the  sale  of  partnership  property 
Bechtoldt  v.  Fain,  71  Ala.  495.  by  one  partner,  with  the  consent  of 

2  Robinson  v.  Wiley,  15  N.  Y.  494.     his  copartner,  was  held  not  to  affect 
3^7ife,  pp.  60.-65.  the  validity  of  tlie  deed.    Ferguson  v. 

4  Wilder  v.  Frederick,  67  Ga.  669.         Hanauer  (Ark.),  19  S.  W.  749.   So,  an 

5  Bechtoldt  v.  Fain,  71  Ala.  495.  application  by  her  for  homestead  in 
•'Kitcbell  V.  Burgwin,  21  111.  45;     that  property  would  not  hold  upon 

Hughes  V.  Watt,  26  Ark.  228.   See  ch.     allegation  by  her  of  the  state  of  facts, 
4.  A  wife's  homestead  right  acquired     in  Arkansas. 


APPLICATION   FOE   HOMESTEAD.  69? 

The  allegation  of  residence  in  the  state,  w2iere  the  home- 
stead benefit  is  confined  to  residents,  has  been  held  neces- 
sary ;  and  even  that  the  applicant's  residence  in  the  county 
should  be  averred.^  A  court  was  asked  to  charge  the  jury 
that  the  applicant,  as  the  head  of  a  family,  was  entitled  to 
homestead.  This  being  refused,  the  appellate  court  sustained 
the  ruling,  and  said  that  it  is  not  every  head  of  a  family, 
but  the  head  of  a  family  residing  in  this  state,  who  is  entitled 
to  exemption.^ 

There  is  no  presumption  that  the  applicant  is  a  foreigner, 
when  his  petition  is  silent  as  to  residence;  but  the  fact  of 
residence  should  be  averred  when  the  statute  makes  that  a 
condition  to  the  granting  of  the  homestead  immunity,  and 
when  the  courts  require  it.' 

Occupancy  by  the  householder  and  his  family,  at  the  time 
of  the  claim  and  at  the  time  an  alleged  disputed  lien  was 
put  upon  the  homestead,  is  a  necessary  averment  (though 
there  need  not  be  further  particularization),  when  setting 
up  homestead,  in  litigation.*  So,  in  litigation,  when  record 
notice  is  among  the  conditions,  the  claimant  of  homestead 
must  aver  that  he  has  had  his  declaration  recorded,  or  has 
caused  the  word  Homestead  to  be  inscribed  on  the  margin  of 
his  recorded  title,  or  has  done  whatever  the  statute  required 
to  be  done  as  notice.* 

In  some  forms  of  application,  there  should  be  a  description 
of  the  land  from  which  the  exempt  portion  is  to  be  carved, 
or  of  the  ])ortion  claimed.  If  a  form  is  prescribed  by  statute, 
it  is  better  to  follow  it  whether  it  be  mandatory  or  merely 
directory.^ 

1  Wilder  v.  Frederick,  supra.  Cal.  202.   See  Orman  v.  Orman,  26  la. 

2  Post  V.   Bird   (Fla.),   9    So.    888;     361.  See  ch.  6. 
Const.  Florida  (1885),  art.    10,   §    1 ;        &  Ante,  p.  169. 

Wabash  R.   Co.   v.    Dougan,   41  111.  ein  the  Mississippi  Code  of  1892, 

App.  54.3.  the  following  form  is  given,  though 

3  So,    when   chattel    exemption    is  not  made  obligatory : 
pleaded.     Mansf.  Dig.  of  Ark.,  t-  3006 ;  "  The  State  of  Mississippi,  ) 

Felner  v.  Bumgarner  (Ark.),  17  S.  W.  County  of .  ) 

709.  "  Homestead  Declaration. 

*  Paris,  etc.  Rj'.  Co.  v.  Greiner  "  I,  John  Doe  (or,  Nancy  Roe),  a  citi- 
(Tex.),  19  S.  W.  564 ;  Symonds  v.  Lap-  zen  of  said  state  and  county,  do  de- 
pin,  82  111.  213 ;  Harper  v.  Forbes,  15    clare  that  I  am  entitled  to  a  home- 


700  PLEADING   AND    PJRACTICE. 

Description:  In  any  application  for  original  homestead, 
there  should  be  such  description  of  the  property  as  to  enable 
the  court  to  grant  the  prayer.^  If  a  town  lot  (the  site  of  the 
applicant's  dwelling-house)  is  what  he  asks  to  have  assigned 
as  his  homestead,  the  petition  should  show  that  it  is  within 
the  statutory  limitations  as  to  quantity  and  value.  If  it  is  a 
town  lot  exceeding  the  limitation,  or  a  farm  of  excessive  size 
and  value,  the  prayer  should  be  that  a  homestead  be  carved 
out  of  it. 

The  petition  of  a  widow,  to  have  homestead  set  out  to  her 
in  the  decedent  husband's  lands,  is  fatally  defective  when 
there  is  no  description  of  the  lands.^ 

In  litigation:  In  homestead  litigation,  particularity  of 
pleading,  as  to  the  conditions,  is  seldom  exacted.  The  allega- 
tion that  the  claimant's  property  in  question  is  his  homestead 
constituted  according  to  the  statute,  and  that  he  has  complied 
with  all  the  conditions,  ^vould  be  sufficient  in  most  courts. 

The  omis  is  upon  the  claimant  of  homestead  in  litigation  to 
establish  by  evidence  all  allegations  necessary  to  the  claiming 
of  his  right.  He  is  not  called  upon  to  prove  a  negative,  but 
he  should  show  that  his  homestead  is  within  the  statutory 
limit,  which,  expressed  in  another  form,  is  to  show  that  it  is 
not  in  excess.^  But  it  has  been  held  that  when  the  quantita- 
tive limit  has  been  alleged,  and  also  that  the  ])roperty  was 
homestead,  the  court  would  presume  that  there  was  no  excess 

stead  iu  said  county,  and  that  I  have  code  in  favor  of  the  declaration.     An 

selected  the  same  as  follovi's :     [Here  additional  thousand  dollars'  worth  of 

describe  the  land  and  premises.     Ap-  property    is    made    exempt,    if    the 

pend  plat,  if  desired."]  owner  declares  upon   it.     In    other 

"Witness   my   signature   this words,  the  monetary  limit  is  $3,000 

day  of ,  A.  D. .  without  declaration,  and  $3,000  with 

" ."  it. 

The  statute  prescribes :  "Thedecla-  For  advanced  sheets  of  the  yet  un- 

ration    shall    be    acknowledged    or  published   new  code  of  Mississippi, 

proved  as  a  deed  is  required  to  be,  the  writer  acknowledges  his  indebted- 

and   deposited   in   the   office   of   the  ness  to  the  kindness  of  E.  E.  Baldwin, 

clerk  of  the  chancery  court  for  record  Esq.,  of  the  Bar  of  Jackson,  Miss, 

in  a  book  to  be  kept  for  that  purpose,  •  Ch.  7. 

and  styled  'Homestead  Kecord.'"  ^Xanner  v.  Thomas,  71  Ala.  233. 

While  it  is  optional  for  the  house-  3  Lozo  v.  Sutherland,  38  Mich,  168 ; 

holder  to  make  and  record  such  a  Shoemaker  v.  Gardner,  19  Mich.  96 ; 

declaration  or  not,  there  is  induce-  Meyers  v.  Pfeiffer,  50  111.  485. 
ment  held  out  to  him  by  the  new 


APPLICATION    FOIi    UOMESTEAD.  701 

of  the  monetary  limitation.'  That  the  value  is  not  in  excess 
of  the  monetary  limit  is  a  ))roper  subject  of  proof,  when 
drawn  in  question;  and  it  is  error  to  deny  the  admission  of 
evidence  tending  to  establish  the  fact.-  If  the  value  is  greater 
than  the  limit,  the  owner  may  ask  for  segi-egation  or  parti- 
tion, that  the  statutory  homestead  may  be  assigned  to  him 
and  marked  off  to  the  maximum  value.' 

Particular  averments  of  facts,  as  to  the  value  of  a  home- 
stead and  the  impracticability  of  carving  out  the  widow's 
dower  from  an  excessive  one,  should  be  made  in  a  bill  de- 
signed to  take  the  administration  of  a  decedent's  estate  out 
of  the  hands  of  the  administrator  and  put  it  into  a  chancery 
court.* 

The  successful  claiming  of  homestead  is  of  the  nature  of  a 
recovery  by  the  claimant  for  the  benefit  of  his  family:  so, 
after  the  enjoyment  of  the  benefit  for  several  years,  neither 
he  nor  his  privies  can  be  deprived  of  it  because  of  failure  to 
allege  his  family  headship,  or  his  county  residence,  in  the  ap- 
plication.' The  presumption  of  ownership,  after  the  api)liea- 
tion  for  homestead  has  been  granted  and  enjoyed,  is  strengtli- 
ened  by  the  fact  that  the  applicant  was  a  resident  of  the  place 
he  applied  to  have  set  apart. 

If  a  bill  in  chancery,  asking  relief  against  the  occupant  of 
homestead  premises,  discloses  the  fact  that  the  question  of 
homestead  right  is  involved,  the  answer  need  not  contain  the 
same  averment  of  fact.*^  The  petition  of  a  widow,  to  have  a 
conveyance  of  the  homestead  by  herself  and  husband  declared 
a  mortgage,  and  to  recover  the  mortgaged  proj^erty  as  her 
homestead,  need  not  contain  the  averment  that  she  had  ac- 
quired no  homestead  since  the  date  of  the  deed,  and  has  none 
now.' 

A  judgment  sustaining  homestead  cannot  successfully  be 
pleaded  as  res  judicata  when  another  suit  affecting  the  stati(i< 

•  Evans  v.  Grand  Rapids  R.  Co.,  68        "  Lenpold  v.  Krause,  95  111.  440. 
Mich.  602.  T  Hays  v.   Hays,  66  Tex.  606.     She 

2  Hill  V.  Bacon,  43  111.  477.  is  held  not  estopped  from  denying 

5  Helfenstein  v.  Cave,  6  la.  374.  the  validity  of  a   n)ortgage  on  the 

*  Jackson  v.  Rovvell,  87  Ala.  685 ;  homestead  given  by  herself.  Plant- 
Code  of  Ala.  (1886).  §g  3543-4.  ers'  Bank  v.  Dickinson,  83  Ga.  711. 

s  Torrence  v.  Boyd,  63  Ga,  22. 


702  PLEADING   AND   PEAOTIOE. 

of  the  property  is  instituted  under  changed  conditions  which 
have  been  duly  alleged.^ 

When  homestead  is  allotted  to  debtors  only,  to  save  it  from 
execution,  there  is  no  restraint  upon  the  sale  of  real  estate  by 
the  owner  when  it  is  free  from  liens,  though  it  may  be  his 
family  residence.  It  may  be  susceptible  of  being  assigned 
him  as  his  homestead,  were  an  execution  pending;  but  that 
fact  is  no  bar  to  his  alienation  of  it,  by  his  sole  act  —  the  wife 
having  only  the  prospective  dower.^  It  follows  that  (where 
such  is  the  law)  an  application  for  the  allotment  of  homestead 
should  contain  the  allegation  of  the  pending  execution  or  of 
the  judgment,  if  the  record  itself  does  not  show  the  state  of 
things.  lie  must  specifically  aver  the  facts  on  which  his 
right  to  the  apportionment  of  homestead  depends.* 

§  8.  Probate  Orders  Setting  Off'  Homestead. 

The  probate  judge  may  assign  homestead  to  the  widow  out 
of  land  which  her  husband  sold  without  her  joinder.*  He  can- 
not set  out  an  estate  of  homestead  when  heirs  or  devisees  dis- 
pute the  right  of  the  claimant.^  That  right  may  be  passed 
upon  in  the  proper  court,  notwithstanding  its  denial  by  the 
probate  court  at  the  instance  of  such  disputants."  By  an  ex 
parte  proceeding,  a  probate  court  allotted  homestead  to  a 
widow.  On  appeal  it  was  said  that  the  allotment  did  not  rise 
to  the  dignity  of  a  judicial  determination  against  the  rights  of 
creditors,  nor  preclude  them  from  urging  their  claims  against 
the  portion  thus  set  apart  to  her.'  Creditors  are  persons  in 
adverse  interest,  when  the  probate  court  is  setting  apart 
homestead  to  a  widow  or  minor  children.  They  have  the 
right  to  oppose.  They  may  file  written  exceptions  to  the  re- 
port of  commissioners  charged  with  laying  off  the  homestead, 
and  to  the  claim  itself.  The  confirmation  of  the  report  of 
commissioners,  when  creditors  have  had  no  opportunity  to 

'Martin  v.  Walker,   43  La.  Ann.  ^Lazell    v.    Lazell,   8    Allen,    575; 

1019.  Woodward  V.  Lincoln,  9  Allen,  239; 

2  Scott  V.  Lane,  109  N.  C.  154 ;  Flem-  McManany  v.  Sheridan  (Wis.),  51  N. 
ing  V.  Graham,  110  N.  C.  374.  W.  1011. 

3  Dickens  v.  Long,  109  N.  C.  165.  6  Mercier  v.  Chace,  9  Allen,  242. 

<  Atkinson  v.  Atkinson,  37  N,  H.        '  Corr  v.  Shackelford,  68  Ala.  241. 
434 ;  Gunnison  v.  Twitchel,  38  N.  H. 
67. 


PROBATE    ORDERS   SETTING    OFF    HOMESTEAD.  703 

o])pose,  may  be  vacated  on  motion.  Where  the  duty  of  the 
probate  judge  is  to  certify  exceptions  to  the  circuit  court  for 
trial,  his  own  adjudication  of  them  is  coram  non  jicdice}  The 
circuit  court  is  the  proper  one  in  which  a  ckiim  of  homestead 
shoukl  be  filed  by  a  widow,  when  her  huslKinddied  before  ex- 
ecution was  levied  against  his  land.  If  liled  in  the  probate 
court,  the  claim  should  be  returned,  with  the  execution,  to  the 
circuit  court.  It  is  not  proper  that  the  issue  should  be  nun  It; 
in  the  probate  court  and  then  certified  to  the  circuit  for  trial. - 

When  execution  lias  been  levied  and  homestead  claim  {'\\(i{\ 
by  the  debtor,  the  creditor's  affidavit  of  contest  must  be  liled 
within  ten  days  after  notice  (when  the  statute  so  provides),  to 
save  his  right  of  opposition.^  The  pur|)ose  of  the  statutory  con- 
test is  to  divide  the  homestead  from  the  other  lands  of  the  es- 
tate. This  does  not  involve  any  question  of  title :  so  a  mortgagee 
cannot  pro]30und  his  interest  and  have  the  validity  of  his  claim 
adjudged  as  against  the  widow's  homestead  claim  either  in 
the  probate  or  circuit  court.  Her  right  may  be  contested  by 
the  representative  of  the  deceased  husband  or  by  any  person 
in  adverse  interest.^  If  exceptions  be  not  filed  within  the 
time  prescribed  they  cannot  be  allowed  later.'^ 

Presumption  is  in  favor  of  the  sworn  return  of  an  officer 
relative  to  laying  off  a  homestead  under  judicial  order.^  Pre- 
mature action  by  the  court  in  setting  out  the  homestead  be- 
fore the  filing  of  the  officer's  return,  when  exhibited  by  bill 
for  the  recovery  of  the  land  thus  set  apart,  gives  ground  for 
demurrer  to  the  bill.^  The  court  cannot  act  on  an  unsw^orn 
return,  or  one  without  an  affidavit  attached.^ 

A  creditor  may  prove  that  his  credit  is  privileged  against 
the  homestead,  in  an  appeal  from  a  probate  decree  to  his  prej- 

1  Kelly  V.  Garrett,  67  Ala.  304.  S.  E.  771.     See  Larey  v.  Baker,  85  Ga. 

-  Keel  V.  Larkin,  72  Ala.  493.  687.     In  Georgia,  where  judicial  ac- 

3  Ala.  Code,  §  3834 ;  Block  v.  George,  tion    is  necessary  in  setting  out  a 

70  Ala.  409.  homestead,  there  must  be  leave  of 

■*  Ala.  Code,  §  2841 ,  Coffey  v.  Joseph,  court  before  a  homestead  can  be  sold, 

74  Ala.  271.  tliough  both  husband  and  wife  join 

5  Farley  v.  Riordon,  72  Ala.  128.  in  a  warranty  deed ;  and  after  a  sale 

6  Timothy  v.  Chambers,  85  Ga.  257 ;  with  warranty,  it  may  be  recovered 
11  S.  E.  598.  if  sold  without  leave  of  court    Tim- 

7  Falls  V.  Crawford,  76  Ga.  35.  othy  v.  Chambers,  85  Ga.  267. 
SMabry  v.  Johnson.  85  Ga.  340;  11 


704  PLEADING   AND    PKACTICE. 

udice ;  and  he  is  held  not  confined  to  the  evidence  of  the  rec- 
ord, as  to  the  time  when  the  debt  accrued.^  If  it  is  within 
the  knowledge  of  the  probate  judge  that  certain  property  of 
the  decedent  is  liable  for  a  debt  antecedent  to  the  homestead 
right,  or  otherwise  liable  to  forced  sale,  he  ought  not  to  set  it 
apart  to  the  widow  and  minors  as  their  homestead.  So,  if 
purcliasc-money  for  the  property  has  been  unpaid.- 

If  the  probate  court  makes  an  order- against  the  estate  of  a 
deceased  wife  who  had  outlived  her  husband,  allowing  debts 
contracted  by  him  while  holding  their  property  in  community, 
the  order  is  erroneous.  It  is  not  absolutely  void,  however. 
The  administrator  of  her  estate  would  not  be  liable  to  her 
heirs  for  paying  such  debts  pursuant  to  the  order,  in  an  action 
brought  by  her  heirs  after  his  discharge.^  A  probate  order  is 
absolutely  void,  however,  when  the  court  is  without  jurisdic- 
tion (as  is  any  judicial  mandate),  though  made  by  consent  of 
parties.  An  order  settmg  off  a  homestead  to  the  widow  and 
minor  children  of  a  decedent,  made  on  the  application  of  the 
widow  herself,  was  held  inoperative  to  divest  her  of  the  title 
to  community  property  already  vested  in  her  as  the  surviving 
spouse.  The  probate  court  (Harrison,  J,,  said)  "  had  no  juris- 
diction of  the  subject-matter  with  which  it  purported  to  deal, 
and  its  order  thereon  was  without  any  effect  upon  the  title 
thus  held  by  the  surviving  widow.     .     .     ."  ^ 

If  there  is  a  question  before  the  probate  court  which  can- 
not be  determined  there,  the  cause  in  which  the  matter  has 
arisen  must  be  removed  to  a  competent  court,  when  the  ques- 
tion so  bears  upon  the  cause  as  to  render  its  solution  essential. 
"  When  a  special  equity  exists,  there  can  be  no  sufficient  rea- 

1  Perrin  v.  Sargeant,  33  Vt.  84.    See  §  52.     And,  by  statute,  community 

Delavan  v.  Pratt,  19  la.  432 ;  Patter-  property  (real  and  personal)  passes  to 

sou  V.   Linder,  14  la.  414.     Compare  thesurvivmg  wife,  when  her  husband 

Redfield  v.  Hart,  12  la.  355.  dies  childless  and  insolvent,  free  from 

-'  McCreery  v.  Fortson,  35  Tex.  641.  community  debts.     Upon  her  death, 

But  see  Harrison  v.  Oberthier,  40  Tex.  it  goes  to  her  heirs  exempt  from  such 

385.  debts.     Cameron   v.    Morris,   supra; 

*  Cameron  v.  Morris  (Tex.),  18  S.  W.  Zwerneman   v.   Von   Rosenberg,   76 

422.     In  Texas,  on  the  death  of  one  Tex.  522 ;  Childers  v.  Henderson,  76 

spouse  or  both,  the  homestead  vests  Tex.  664. 

in  the  heirs  of  the  decedent,  just  as  ^  Slieehy  v.  Miles,  93  Cal.  228 ;  28  P. 

other  property  does.     Const,  art.  16,  1046 ;  Cal.  Code  Civ.  Proc,  §  1468. 


PEOBATE    ORDERS    SE'lTING    OFF    irOMESTEAD.  705 

son  why  the  final  settlement  of  a  removed  administrator 
may  not,  on  his  application,  be  transferred  to  and  made  in  the 
chancery  court.  Though  his  office  and  functions  as  adminis- 
trator are  terminated  by  removal,  he  is  required  to  make  final 
settlement  of  his  administration,  which  should  bo  made  in  a 
court  having  jurisdiction  and  power  to  determine  and  adjust 
all  the  equities  arising  thereon."  ^ 

Where  the  decree  confirming  the  report  of  appraisers  who 
have  set  apart  a  homestead  to  the  widow  is  appealable  by 
the  heirs  of  the  decedent,  they  lose  their  right  to  have  it  set 
aside,  if,  after  receiving  notice  of  the  apj)lication  for  home- 
stead, they  stand  by  and  see  the  estate  administered,  and  if 
they  are  not  prevented  by  fraud  from  proving  that  the  dece- 
dent held  the  property  in  his  separate  right.  So  held,  when 
the  decree  had  given  the  homestead  to  the  widow  absolutely. - 
And  when  there  is  an  allowance  to  children  in  lieu  of  home- 
stead, the  court's  award  cannot  be  set  aside  on  appeal  when 
there  is  no  evidence  showing  the  order  to  be  erroneous.''  An 
appeal  will  not  lie  from  an  interlocutory  judgment  re-assigning 
a  homestead  and  appointing  commissioners  to  measure  it.^ 

A  homestead  right,  though  not  an  estate,  may  involve  a  ques- 
tion of  title  to  land ;  and  such  a  question  cannot  be  tried  by  a 
summary  proceeding  before  a  circuit  court  commissioner  to  re- 
cover possession  of  real  estate.'  But  the  title  itself  must  not 
be  confounded  with  the  right.  Title  is  not  changed  bv  the 
designation  of  land  as  a  homestead.**  If  it  w^as  in  fee-simple 
before,  it  remains  so  after  the  designation.  If  it  was  less  than 
a  fee  before,  it  is  not  raised  in  character  because  the  ground 
to  which  it  relates  has  taken  on  the  homestead  character. 

1  Norton  v.  Norton  (Ala),  10  So.  436.  than  her  dower,  she  has  the  diflfer- 
See  Wood  v.  Morgan,  56  Ala.  397.  euce  set  off   to  her  in   dowtr  from 

2  Gruwell  v.  Seybolt,  83  Cal.  7.  the  property  of  the  estate.     Graves 

3  Ross  V.  Smith,  44  Tex.  398.  v.  Cochran,  68   Mo.  76.     If  land   ex- 
■»  Macke    v.  Byrd  (Mo.),    19  S.  W.     eeeds  the  homestead  limitation,  and 

70.  By  Mo.  Rev.  Stat  (1879),  §  2694,  has  been  divided  among  heirs  who 
the  commissioners  to  set  apart  home-  hold  subject  to  the  widow's  right, 
stead  make  the  apportionment  of  they  are  entitled  to  notice  of  any  pro- 
dower  when  the  widow's  right  to  bate  proceeding  to  set  off  her  home- 
the  latter  exists.  What  she  gets  of  stead.  Miller  v.  Schuebly,  103  Mo. 
homestead  is  in  diminution  of  dower.  368. 

Bryan  v.    Rhoades,  96  Mo.  485.      If  5  Riggg  v.  Sterling,  51  Mich.  157. 

Uer  interest  in  the  homestead  is  less  ••  Ex  parte  Raj%  20  S.  C.  246. 
45 


706  PLEADING    AND   PKACTIOB. 

§  9.  Probfite  Orders  to  Sell  Homestead. 

Though  the  probate  court  has  no  authority  to  order  the 
sale  of  a  homestead  of  a  decedent  during  the  minority  of  any 
of  his  children,'  yet  if  it  be  sold  with  other  lands,  in  a  body, 
under  probate  order,  and  the  sale  be  confirmed,  the  circuit 
court  cannot  quash  the  confirmation  on  certiorari;  for  it  has 
no  guide  by  such  writ  to  separate  the  homestead  from  the 
other  land  sold  with  it.  An  heir,  wronged  by  such  sale,  must 
seek  redress  by  action  at  law  to  recover  possession  of  the 
homestead  portion  of  the  land  sold.^ 

Partition  is  necessary  when  realty  including  the  homestead 
is  sold  with  the  homestead  excepted.  There  must  be  segrega- 
tion of  the  alienated  portion  from  that  which  remains  unsold. 
There  is  no  co-tenancy  existing  between  the  purchaser  and  the 
homestead-holder,  for  either  does  not  have  an  interest  in  all 
the  tract.  The  householder  has  the  whole  and  exclusive  in- 
terest in  the  homestead ;  the  purchaser  has  the  whole  and  ex- 
clusive interest  in  the  rest ;  both  interests  to  be  set  out.  And, 
in  the  absence  of  a  legal  remedy,  partition  may  be  made  by 
order  of  a  court  of  equity  on  the  application  of  either  party.' 
A  probate  court  may  order  it  when  the  homestead  is  to  be 
segregated  from  administrate  property  with  which  it  is  con- 
joined.^ 

There  may  be  co-tenancy  resultant  from  sale  when,  instead 
of  a  homestead,  an  exempt  interest  is  intermingled  with  other 
real  interests  sold,  so  tliat  the  purchaser  and  the  householder 
owning  such  interest  "  hold  by  several  and  distinct  titles  but 
by  unity  of  possession ;  because  none  knoweth  his  own  sev- 
eralty, and  therefore  they  all  occupy  promiscuously" — to 
quote  from  Blackstone.* 

Such  exem])t  interest  may  be  ascertained  before  or  after  sale. 
and  partition  may  be  made  and  the  co-tenancy  destroyed :  but 
it  is  not  homestead.  Though  often  called  so,  neither  decision 
nor  statute  can  change  its  nature  and  make  it  so.    By  judicial 

1  Stay  ton  v.  Hal  pern,  50  Aik.  329 ;        3  See  Ketchum  v.  Patrick,  32  S.  C. 
Nichols  V.  Shearon,  49  Ark.  75;  Mc-    443;  Barney  v.  Leeds,  51  N.  H.  278, 
Cloj'  V.  Arnett,  47  Ark.  445;  Cannon    and  cases  there  cited. 
V.  Bonner,  38  Tex.  487.  ''  Colfey    v.   Joseph,  74    Ala.   271 ; 

2Burgett  V.  Apperson,  52  Ark.  213.     Freeman  on  C.  &  P.,  §  528. 

5  2  Black.  Com.  191. 


PJiOBATE    OliDERS   TO    SELL   HOMESTEAD.  707 

()V  legislative  action,  such  intangible  interest  can  no  more  be 
made  a  |)hvsical  family  residence  than  it  can  be  transformed 
to  a  chufcli  or  theatre. 

When  an  administrator  had  sold  land  of  the  decedent  to  pay 
debts,  witii  the  widou'er's  homestead  right  reserved,  it  was 
too  late  for  a  creditor  to  compel  him  to  sell  her  reserved  in- 
terest to  pay  a  balance  on  his  debt,  which  accrued  before  the 
passage  of  the  homestead  statute  —  he  having  taken  his  divi- 
dend as  creditor  of  the  insolvent  estate  without  objection  to 
the  allowance  of  the  widow's  homestead.  He  was  held  con- 
cluded by  his  own  action.^ 

The  judgments  and  orders  of  probate  courts  have  been 
accorded  the  same  presumptions  in  their  favor  as  those  of 
the  circuit  courts.-  So,  where  this  usage  prevails,  when  such 
a  court  orders  real  estate  to  be  sold  for  debts,  the  presump- 
tion is  that  it  is  liable  to  sale.  The  burden  is  on  the  oppo- 
nent to  remove  the  presumption.  The  burden  is  on  the  claim- 
ant, who  avers  that  the  property  subject  to  the  order  is  ex- 
empt, to  establish  his  position.^  It  was  held  to  be  on  the  party 
denying  the  right  of  a  widow  and  minor  children  to  home- 
stead in  property  sold  by  an  administrator  of  the  estate  of  the 
deceased  husband  and  father,  unless  the  sale  Avas  made  to  pay 
debts  from  which  the  homestead  was  not  exempt.^ 

In  a  suit  and  sale  to  effect  partition,  in  which  the  Avidow  is 
plaintiff  and  the  minor  heirs,  duly  represented,  are  parties  de- 
fendant, the  title  passes  shorn  of  its  homestead  character  if 
no  exemption  right  is  claimed  during  the  proceedings.'  But 
the  right,  if  claimed,  is  reserved  and  satisfied  out  of  the  pro- 
ceeds.^ 

Quitclaim  title  w^as  held  to  pass  homestead'  when  given 
by  a  widow^  to  the  executor  of  her  late  husband's  estate.  She 
released  all  her  right,  title  and  interest,  "whether  of  dower 
or  otherwise,  including  every  claim  and  demand,"  which  she 
might  have  "  against  the  estate  for  allowance  as  widow  or 

1  Judge  of  Probate  v.  Simonds,  46        *  Rogers  v.  Marsh,  73  Mo.  64. 

N.  H.  363.  5  Rolf  V.   Timmermeister,   15  Mo. 

2  Murphy  v,  De  France,  105  Mo.  53,     App.  249. 

15  S.  W.  949 ;  Price  v.  Ass'n,  101  Mo.        «  Graves  v.  Cochran,  08  Mo.  74. 
107.  '  Mack  V.  Heiss,  90  Mo.  578. 

3  Id.    Compare  Daudt  v.  Harmon, 

16  Mo.  App.  203. 


708  PLEADING    ANn    PRACTICE. 

otherwise."  There  seems  to  have  been  no  minor  to  delay 
partition.  There  is  no  reason  why  partition  should  be  de- 
layed when  no  homestead  right  retards  it. 

A  community  homestead  had  an  execution  levied  upon  it 
on  a  judgment  rendered  against  the  surviving  wife.  Upon 
her  death  the  judgment  creditor  instituted  proceedings  to 
have  the  property  appraised,  and  the  excess  above  five  thou- 
sand dollars  (if  any)  applied  to  the  satisfaction  of  his  judg- 
ment.^ The  court  ruled  that  the  judgment  against  the  de- 
cedent should  be  presented  to  the  executor  like  any  other 
claim,  since  the  levy  had  created  no  lien  upon  the  homestead.' 
The  death  of  the  husband  had  not  affected  the  character  of 
the  homestead.^  The  property  vested  in  the  surviving  wife 
at  his  death.* 

The  creditor's  claim  was  therefore  to  be  presented  to  the 
executor  or  administrator  of  the  estate  of  the  widow  as  a 
common  claim.  His  judgment  and  levy  simply  made  a  foun- 
dation for  statutory  proceedings  to  ascertain  the  value  of  the 
property  and  for  an  order  of  court  for  partition  or  sale,  that 
the  excess  might  be  applied  to  the  judgment.'^ 

Indivisible  property,  appraised  beyond  the  amount  of  home- 
stead exemption,  may  be  sold  at  execution  sale  when  the 
debtor  has  given  notice  to  the  officer  in  charge  that  he  will 
pay  the  debt  less  the  exemption  sum.^ 

Insolvency:  In  insolvency  proceedings,  an  order  to  sell  the 
homestead  of  the  debtor  was  held  void."  Had  the  court  pos- 
sessed jurisdiction  over  the  property  and  subject-matter  as 
well  as  over  the  parties  it  would  have  been  voidable  but  not 
absolutely  void.  If  home  property  be  sold  under  execution 
without  setting  off  the  homestead  when  the  statute  directs 
it  to  be  done,  the  irregularity  will  not  prevent  the  purchaser 
from  recovering  possession  by  action  of  ejectment.  The  sale 
will  not  be  void,  unless  the  requirement  that  the  homestead 

1  Cal.  Civ.  Code,  §  1245.  Gagliardo  v.  Duniont,  54  Cal.  496 ; 

2  Sanders  v.   Russell,  86   Cal.    119 ;     Herrold  v.  Keen,  58  Cal.  443. 

Cal.  Code  Civ.  Proc,  §§  1475,  1505.  5  Cal.  Civ.  Code,  §  1245  et  seq.:  Bar- 

3  Id;  Tyrrell  v.  Baldwin,  78  Cal.  rett  v.  Sims,  59  Cal.  618;  Lubbock  v. 
470.  McMann,  82  Cal.  230. 

*Id.;  Mawson  v.  Mavvson,  50  Cal.  ^  Hall  v.  Johnson,  64  N.  H.  481; 
539 ;  Estate  of  Headen.  52  Cal.  295 ;     N.  H.  Gen.  Laws,  ch.  138,  §  13. 

•  Barrett  v.  Simnis,  62  Cal.  440. 


PROBATE  ORDERS  TO  SELL  HOMESTEAD. 


709 


be  set  off  is  prohibitory  of  sale  made  without  compliance.  A 
court  of  chancery  may  adjust  the  rights  of  the  parties  con- 
cerned.^ 

A  court  of  bankruptcy  or  insolvency  has  nothing  to  do  with 
exempt  property  beyond  the  segregation  of  it  from  what  is 
liable  for  debt ;  and  it  can  do  that  only  by  virtue  of  statute 
when  its  jurisdiction  is  limited,  as  it  ordinarily  is.  Such  court 
cannot  even  order  the  segregation  after  an  illegal  and  void 
sale  of  the  homestead,  b}''  the  assignee,  in  block  with  liable 
))r()perty,  by  virtue  of  any  equitable  power.  By  statute,  there 
may  be  partition  when  the  sale  is  not  void. 

An  insolvent,  after  assignment  for  the  benefit  of  his  credit- 
ors, may  protect  his  homestead,  displace  an  intruder  by  writ 
of  ejectment,  and  employ  any  proper  remedies,  legal  or  equi- 
table, which  a  solvent  man  may  use  —  for  his  homestead  was 
not  surrendered,  and  the  assignee  has  no  authority  over  it  or 
charge  concerning  it.^  The  assignment  transfers  the  excess.' 
The  reservation  of  exempt  property  from  general  assignment 
does  not  vitiate  the  assignment.* 

A  purchaser,  from  a  bankrupt,  of  property  excepted  from 
sale  by  a  bankrupt  court,  ge-ts  title  free  from  the  demands  of 
the  creditors ;  and  the  widow  of  the  bankrupt  has  been  held 
not  entitled  to  homestead  in  it.^ 


1  Leupold  V.  Krause,  95  111.  440. 

2  Moore  v.  Morrow,  28  Cal.  551. 

3  Copeland  v.  Sturtevant  (Mass.),  30 
N.  E.  475.  The  homestead  was  sub- 
ject to  partition,  under  the  probate 
law  of  Texas  of  1848.  wdien  the  wife 
survived  the  husband  and  the  estate 
was  solvent.  In  a  proceeding  for 
partition,  a  judgment  determining 
the  interests  of  the  parties  to  the  suit 
relative  to  the  title  to  land  is  admis- 
sible in  evidence,  though  the  wife 
was  not  a  party,  if  she  then  had  no 
homestead  rights  involved  in  that  ac- 
tion, though  she  is  now  claiming 
them  in  community  property  affected 
by  the  judgment.  Jergens  v.  Schiele, 
61  Tex.  255.  See  Putnam  v.  Young, 
57  Tex.  464.  But  a  party  who  might 
have  claimed  homestead  in  a  litiga- 


tion cannot  do  so  afterwards  against 
the  other  party  who  was  successful 
in  the  first  suit.  He  and  his  privies 
are  concluded.  Nichols  v.  Dibrell, 
61  Tex.  539.  It  has  been  held  that  a 
widow's  failure  to  claim  partition  is 
a  waiver.  Chilson  v.  Beeves,  29  Tex. 
276. 

<  Bradley  v.  Bischel,  81  la.  80. 

5Youngblood  v.  La  then,  20  S.  C. 
370.  Section  5057  of  the  United 
States  Revised  Statutes  limits  a  suit 
by  the  assignee  against  the  bankrupt 
to  recover  land  which  the  latter 
fraudulently  retains  as  his  home- 
stead. Leech  v.  Dawson,  23  Fed.  624 ; 
Phelps  T.  McDonald,  99  U.  S.  306; 
Clark  V.  Clark.  17  How.  (U.  S.)  315. 
See  Jenkins  v.  Bank.  106  U.  S.  574. 


710 


PLEADING    AND   PRAOTIOE. 


§  10.  Suit  by  Administrator  Relative  to  Creditors. 

A  statute  authorized  an  administrator  of  an  estate  to  prose- 
cute, at  law  or  in  equity,  in  behalf  of  creditors,  when  there  is 
deficiency  in  his  hands  and  a  fraudulent  conveyance  of  realty 
has  been  made  by  the  decedent:  the  action  being  to  recover 
the  projierty.^  In  a  proceeding  by  virtue  of  this  statute,  it 
was  held  that  the  decedent  debtor's  conveyance  of  all  his  prop- 
erty with  the  homestead  was  fraudulent  only  as  to  creditors 
not  provided  for.  So  far  as  necessary  to  pay  their  claims,  the 
conveyance  was  liable  to  be  set  aside.  But  the  administrator, 
under  that  statute,  cannot  recover,  by  action  of  ejectment,  an 
undivided  interest  in  the  fraudulently  conveyed  realty,  regard- 
less of  the  homestead ;  for  the  exempt  portion  of  the  land  sold 
cannot  have  been  conveyed  in  fraud  of  creditors.^  He  must 
proceed  by  bill  in  equity.' 


1 R.  L.  of  Vermont,  §  2162. 

2  Id,  §1894. 

3  Pease  v.  Shirlock,  63  Vt.  622; 
22  A.  661.  Tyler,  J. :  "  The  defend- 
ants' counsel  insisted,  on  the  trial  of 
the  court  below,  that  the  plaintiff, 
when  he  rested,  liad  not  made  ap/ma 
facie  case,  and  moved  for  a  nonsuit, 
which  motion  was  denied.  The  first 
question  presented  by  the  exceptions 
is  whether  the  conveyance  by  Will- 
iam Shirlock  and  wife  of  their  farm 
to  their  son,  the  defendant  Frank 
Shirlock,  was  fraudulent  and  void  as 
to  the  grantor's  creditors.  The  farm 
conveyed  was  worth  from  $1,700  to 
$2,200,  of  which  from  $700  to  $800 
was  in  the  dwelling-house  and  shed 
attached.  The  grantor's  debts  at  the 
time  of  the  conveyance,  as  subse- 
quently shown  by  the  report  of  com- 
missioners, amounted  to  about  $1,200, 
for  the  payment  of  which  he  re- 
served property  to  the  amount  of 
only  $81.  The  grantor  took  a  mort- 
gage back,  conditioned  for  the  sup- 
port of  himself  and  wife  during  their 
lives,  which  support  the  defendant 
furnished.  The  deed  and  mortgage 
were    executed    February  29.    1888. 


William  Shirlock  died  April  17th  fol- 
lowing, and  his  wife,  August  11, 1890. 
On  the  21st  day  of  August,  1889, 
Frank  Shirlock  executed  and  de- 
livered a  mortgage  of  the  premises 
to  William  Martin  as  security  for  a 
debt  due  from  him  to  Martin.  This 
action  was  brought  May  15,  1890,  by 
the  administrator  of  William  Shir- 
lock in  behalf  of  his  creditors,  under 
section  2162,  E.  L.,  which  is  as  fol- 
lows :  '  When  there  is  a  deficiency  of 
assets  in  the  hands  of  the  executor  or 
administi'ator,  and  when  the  deceased 
person  made  such  fi-audulent  con- 
veyance of  real  estate  in  his  life-time, 
the  executor  or  administrator  may 
commence  and  prosecute  to  final 
judgment  any  proper  action  or  suit 
in  law  or  equity,  for  the  recovery  of, 
and  may  recover  for  the  benefit  of 
such  creditors,  such  real  estate ;  and 
may  also,  for  the  benefit  of  the  cred- 
itors, sue  and  recover  for  goods,  chat- 
tels, rights,  or  credits  fraudulently 
conveyed  by  the  deceased  in  his  life- 
time.' That  the  conveyance  falls 
within  the  provision  of  this  section, 
and  of  sections  1955  and  4155,  that 
the  deed  and  mortgage  were  fraudu- 


ADMINI8TKAT0R  S    SUIT    AS    TO    CHEDITORS. 


711 


That  the  decedent  and  his  w 
quired  their  limited  homestead 
the  creation  of  the  debts;  and 
been  segregated  from  the  rest 

lent  and  void  as  to  William  Shirlock's 
creditors,  and  that  in  a  proper  action 
the  administrator  may  recover  a  part 
of  the  land  sufficient  to  paj'  the  debts, 
admits  of  no  serious  doubt,  for  the 
reason  that  the  conveyance  was  op- 
erative to  place  substantially  all  the 
grantor's  property  beyond  the  reach 
of  his  creditors.  That  this  was  done 
with  such  intention  on  the  part  of 
the  grantor,  and  that  that  intent  was 
known  to  the  grantee,  nuist  have 
been  found  by  the  jury,  under  the 
charge  of  the  court;  for  the  excep- 
tions state  that  the  jury  were  fully 
instructed,  and  in  a  manner  to  which 
no  exception  was  taken,  concerning 
the  facts  they  must  find,  and  the  law 
governing  the  plaintiff's  right  of  re- 
covery. It  was  decided  in  Crane  v. 
Stickles,  15  Vt.  253,  that  a  convey- 
ance of  all  the  debtor's  property, 
without  making  provision  for  the 
payment  of  debts,  was  fraudulent 
and  void  as  to  creditors.  Prout  v. 
Vaughn,  52  Vt.  451..  It  is  well  set- 
tled that  a  debtor  is  bound  to  reserve 
from  a  conveyance  of  this  kind 
ample  property  for  the  payment  of 
his  debts.  Church  v.  Chapin,  35  Vt. 
323;  Foster  v.  Foster,  56  Vt.  540. 
Kelsey  v.  Kelley,  22  Atl.  Rep.  597, 
heard  at  the  last  general  term,  and 
referred  to  by  counsel,  is  in  line  with 
these  cases. 

"  The  second  question  is  whether, 
in  an  action  of  ejectment,  the  plaint- 
iff could  recover  an  undivided  in- 
terest in  the  entire  premises,  irre- 
spective of  the  homestead.  The  argu- 
ments of  counsel  on  both  sides  have 
proceeded  upon  the  ground  that 
thei'e  was  a  homestead  interest  in 
this  farm,  exempt  from  attachment 


ife  (in  the  case  cited)  had  ac- 
right  in  the  property,  prior  to 
that  the  homestead  had  never 
of  the  farm,  was  conceded  in 

when  the  action  was  commenced, 
and  there  was  no  exception  to  the 
charge  of  the  court  on  this  subject. 
.  .  .  William  Siiirlock's  creditors 
had  no  interest.  Neither  they  nor 
the  plaintiff,  as  tiie  representative  of 
their  interests,  could  be  tenants  in 
common  with  the  defendant  in  the 
homestead.  Lindsey  v.  Brewer,  60 
Vt.  627,  15  Atl.  Rep.  329.  On  this 
ground,  the  defendant's  motion  for  a 
nonsuit  should  have  been  granted. 
By  the  terms  of  the  statute  under 
which  this  action  is  brought,  the  con- 
veyance was  fraudulent  and  void 
only  as  to  the  grantor's  creditors, 
and  should  be  disturbed  only  so  far 
as  is  necessary  to  satisfy  their  claims. 
In  a  case  where  the  estate  thus  con- 
veyed was  w'orth,  say,  $5,000,  and 
the  debts  of  the  grantor  were  but  a 
few  hundred  dollars  in  amount,  it 
would  be  a  severe  construction  of  the 
statute  to  hold  the  whole  convey- 
ance void.  If  William  Shirlock  had 
owed  no  debts,  the  conveyance  of  his 
farm  to  his  son  would  have  been 
valid,  and  in  the  circumstances  of 
this  case  no  reason  can  be  assigned 
why  the  conveyance  should  not  be 
held  valid  except  as  to  creditors. 
Bassett  v.  Hotel  Co.,  47  Vt.  313.  Then, 
was  the  interest  which  the  plaintiff 
was  entitled  to  recover  in  the  de- 
manded premises  such  as  could  be 
reached  by  means  of  an  action  at 
law?  The  statute  provides  that  the 
administrator  may  have  any  proper 
action  or  suit  in  law  or  equity  for  a 
recovery  of  the  real  estate  •fraudu- 
lently conveyed.  A  case  can  readily 
be  conceived  of  in  which  an  action 
at  law  would  be  the  appropriate  rem- 
edy, as   where   the   estate  conveyed 


712  PLEADING    AND    PRACTICE. 

the  trial  court.  Their  right  to  have  had  the  exempt  portion 
laid  oflf  so  as  to  give  them  a  real,  tangible,  habitable  home- 
stead, was  beyond  dis])ute.  Their  right  to  sell  it,  if  thus  laid 
off,  was  unquestionable.  But  the  contention  by  counsel  that 
the  purchaser  became  a  co-tenant  with  the  vendors,  who  were 
supposed  to  have  held  an  ideal  homestead  after  the  nominal 
conveyance  of  the  whole  farm,  was  manifestly  untenable;  be- 
cause no  such  ideal  has  a  hearth-stone  or  anything  habitable ; 
the  decedent  and  wife  could  not  have  that  exclusive  possession 
which  is  essential  to  homestead  if  the  purchaser  was  a  tenant- 
in-common  with  them.  Clearly  then,  a  bill  in  equity,  to  as- 
certain the  creditors'  rights  in  the  unsold  interest,  and  to  ac- 
cord justice  to  them  by  segregating  the  homestead  from  the 
rest  of  the  farm  and  giving  them  satisfaction  out  of  the  bal- 
ance, was  the  proper  remedy. 

The  whole  sale  w^as  not  a  nullity  because  in  fraud  of  the 
creditors ;  the  unknown  portion  non-liable  (because  the  home- 
stead right  was  in  it)  was  sold  without  fraud  of  creditors; 
but  that  ])ortion  was  not  homestead  when  so  intermixed  with- 
liable  realty  as  to  be  undistinguishable.  It  was  an  interest  — 
not  land  itself. 

The  language  of  the  statute  was,  not  that  an  administrator 
should  have  an  action  at  law  merely  in  behalf  of  defrauded 
creditors,  but  "  any  proper  action ;  "  and  since  the  statute  pro- 
vided no  adequate  legal  remedy,  resort  should  have  been  had 
to  an  equitable  one,  as  the  court  ably  pointed  out. 

The  homestead  is  not  generally  administered  by  the  admin- 
istrator as  an  asset  of  the  decedent's  estate,  and  is  not  usually 
subject  to  the  orders  of  the  court  of  ])robate  when  settling  the 
estate.^  But  when  it  is  an  undivided  part  of  other  realty 
which  is  subject  to  that  court  and  is  to  be  administered,  it  may 
be  segregated  by  order  of  the  court.-  If  it  is  not  thus  con- 
was  unincumbered  by  a  homestead  sufficient  to  pay  the  debts,  could  be 
and  the  whole  was  insufficient  to  sequestered  and  sold,  and  the  title  tc 
pay  the  debt  of  the  grantor;  but  the  remainder  rest  undisturbed  in. 
here,  the  homestead  being  unelimi-  the  hands  of  the  defendant.  Spauld- 
nated  from  the  other  real  estate,  we  ing  v.  Warner,  59  Vt.  646,  11  Ati. 
are  unable  to  see  how  ejectment  or  Rep.  186 ;  Lindsey  v.  Brewer,  stqyrar 
any  other  action  at  law  can  meet  the  '  Estate  of  Tompkins.  12  Cal.  114 : 
exigencies  of  the  case.  By  a  pro-  Carter  v.  Randolph,  47  Tex.  379. 
ceeding  in  equity  a  part  of  the  land,        '^Id.:  Pease  v.  Shirlock,  supra. 


ADMINISTRATOk's    slit    as    to    CKEDITOKS.  713 

nected  with  the  realty  so  as  to  be  merely  an  ideal  homestead, 
or  non-habitable  interest,  but  is  a  house-and-land  family  resi- 
dence well  rounded  and  needing  no  segregation,  the  adminis- 
trator has  nothing  to  do  with  it.  If  such  a  real  homestead 
has  been  sold  by  the  sheriff  on  judgment  for  debt,  and  the 
debtor-owner  sues  to  recover,  and  dies  pending  the  action, 
his  administrator  cannot  take  his  shoes  to  go  on  and  prose- 
cute:' it  is  the  business^  of  those  to  whom  the  homestead 
will  come,  if  the  suit  be  gained.  No  doubt  the  administrator 
can  take  part  in  any  suit  in  which  the  homestead  is  incidentally 
involved,  if  it  is  necessary  to  protect  the  rights  of  creditors 
and  prevent  fraud  upon  them.  If  the  question  is  whether 
homestead  shall  be  apportioned  from  other  land  which  is  ad- 
ministrable,  he  has  a  voice. 

When  a  probate  court  orders  land  to  be  sold  to  pay  debts 
of  the  decedent,  and  the  land,  or  a  part  of  it,  is  claimed  as  ex- 
empt because  it  is  a  homestead,  the  burden  of  proof  to  estab- 
lish the  plea  is  on  the  claimant.^ 

The  husband's  giving  to  his  wife  the  proceeds  of  the  sale  of 
their  homestead  is  not  fraudulent  ^cr  ^e  as  to  creditors.^  It 
is  different  from  the  conveyance  of  the  homestead  itself  to 
her,  when  both  he  and  she  continue  to  enjoy  it ;  for  then  it  is 
plainly  a  change  of  ownership  which  does  not  affect  the  policy 
of  the  law  to  protect  families.  In  a  sale  for  money  not  held 
for  re-investment  in  a  new  home,  the  homestead  is  no  longer 
enjoyed  and  the  policy  of  the  law  no  longer  carried  out :  so 
the  creditors  would  ordinarily  have  the  right  to  execute  their 
judgments  against  ordinary  property  bought  by  the  debtor 
with  the  proceeds  of  the  homestead.  If  the  money  is  not  in- 
vested in  liable  property,  but  is  donated  by  the  debtor  to  his 
wife,  there  would  seem  to  be  plausibility  in  the  proposition 
that  it  would  be  liable  to  creditors ;  but  this  is  not  generally 
held,  and,  as  above  shown,  such  disposition  of  the  proceeds  of 
the  homestead  is  not  fraudulent  in  itself  as  to  creditors.  The 
doctrine  is  settled  that  creditors  have  nothing  to  do  with  ex- 
empt property,  except  that  they  may  question  the  exeun)tion ; 

1  Bassett  v.  Messner,  30  Tex.  604.  widow  and  all  the  heirs  were  made 

-  Murphy  v.  De  France.  105  Mo.  53  necessary  parties  to  a  proceeding  for 

(overruling  Daudt  v.  Harmon,  16  Mo.  a  homestead.     Id. 

App.   203).     By  the  act  of  1865,  the        ^  Wetherly  v.  Straus,  93  Cal.  383. 


714  PLEADING    A.ND    PRACTICE. 

that  they  are  not  defrauded  by  any  disposition  the  owner  may 
make  of  it ;  but  when  it  is  converted  into  ordinary  property, 
the  latter  is  liable  to  creditors.^ 

§  11.  Relative  to  Foreclosure. 

Manifestly,  if  the  homestead  has  been  duly  mortgaged  by 
man  and  wife,  they  can  have  nothing  to  say,  against  its  fore- 
closure, on  the  ground  of  any  remaining  homestead  rights.  All 
those  rights  went  when  they  made  the  mortgage,  and  the 
mortgagors  are  presumed  to  have  had  the  quid  pro  quo?  But 
suppose  the  w^ife  did  not  join  in  making  it,  and  therefore  the 
mortfras-e  was  void  as  to  the  homestead :  there  would  be  oc- 
casion  for  allotment  if  there  was  other  realty  mortgaged  in 
the  same  act,  and  that  other  realty  was  subject  to  the  hus- 
band's disposal.  An  attempt  by  the  mortgagee  to  foreclose 
against  the  exempt  property,  as  well  as  the  non-exempt,  would 
render  necessary  a  separation  of  the  two.  It  would  become 
necessary,  in  some  states,  for  the  debtor  to  plead  his  exemp- 
tion. 

The  adult  heirs  of  a  deceased  homestead-holder  wdio  mort- 
gaged the  premises  cannot  compel  foreclosure,  in  a  partition 
suit  mstituted  by  them,  if  the  widow  and  minor  heirs  are  in 
occupancy,  and  she  promptly  pays  the  interest  on  the  mort- 
gage, and  the  mortgagee  does  not  desire  to  foreclose.^ 

Redemption:  A  homestead  subject  to  a  judgment  lien  may 
be  redeemed  by  the  lien-holder  after  its  foreclosure  as  part  of 
a  larger  property  by  a  mortgagee,  if  he  was  not  a  party  to  the 
foreclosure.  To  redeem,  he  must  pay  the  sum  bidden  at  the 
public  sale  for  the  whole  propert}^  less  the  value  of  the  home- 
stead.* In  a  bill  to  redeem  land  from  mortgage,  if  the  plaint- 
iff claims  redemption  on  the  ground  that  he  holds  an  estate  of 

1  See  generally  for  administrator's  it  is  void.  Comp.  Stat.  Oklahoma, 
sale  of  homestead,  pages  490,  493.  §  2861.     And  in  Texas,  the  mortgage 

2  Exception  to  this  statement  may  or  trust  deed  of  the  homestead  is  in- 
be  found  in  statutes  where  mortgage  hibited,  except  when  given  to  secure 
is  prohibited.  In  Oklahoma,  eighty  purchase-money,  debt  for  improve- 
of  the  one  hundred  and  sixty  acres,  ments,  e^c.  Sayles' Tex.  Stat.  (1888); 
allowed  as  a  rural  homestead,  cannot  Const,  of  Tex.,  art.  XVI,  g§  50-.'32. 

be  subjected  to  mortgage,  either  legal        ^  Hannah  v.  Hannah  (Mo.),  19  S.  W. 

or  equitable.      Though  both  liusband     87. 

and  wife  execute  the  act  in  due  form,        ••  Sutherland  v.  Tyner,  72  la.  232. 


RELATIVE  TO  FORECLOSURE.  715 

homestead  in  the  property,  and  alleges  that  the  mortgaged 
premises  are  a  part  of  his  homestead  though  separated  from 
his  dwelling  place,  his  bill  is  not  liable  to  demurrer  on  the 
ground  that  it  shows  no  estate  of  homestead  in  the  property.^ 
Under  such  a  bill,  when  the  plaintiff  has  right  of  homestead, 
the  exempt  portion  may  be  set  oif  by  commissioners.- 

The  sheriff's  sale  of  property  on  part  of  which  the  home- 
stead right  rests  is  not  necessarily  void  because  it  was  not 
made  expressly  subject  to  the  homestead  estate.'  : 

A  senior  mortgagee,  whose  lien  was  ])rivileged  against  his 
debtor's  homestead  and  other  realty,  took  possession  of  the 
property  to  foreclose  for  breach  of  condition.  A  junior  mort- 
gagee, whose  lien  was  subject  to  the  debtor's  homestead  right, 
filed  a  bill  to  redeem ;  and  it  was  held  that  he  could  compel 
his  senior  to  account  to  him  for  rents  and  profits  received,  or 
which  might  have  been  recovered  by  him,  as  possessor  of  the 
whole  property.^ 

If,  at  a  sale  on  execution  of  an  equity  of  redemption  of 
property  on  which  rests  a  homestead  right,  that  right  be  de- 
manded by  the  beneficiar}'^  and  disregarded  by  the  officer,  the 
purchaser  cannot  oust  the  homestead-holder,  for  he  gefs  no 
title.'^ 

Exhausting  other  property:  The  right  to  make  the  mort- 
gage creditor  exhaust  other  property  before  the  homestead 
does  not  belong  to  a  third  person  who  has  bought  the  home- 
stead after  the  execution  of  the  mortgage  under  which  the 
sale  is  had.^  If  such  creditor  has  exhausted  such  other  prop- 
erty, he  cannot  have  it  proceeded  against  in  the  hands  of  a 
third  person  before  the  selling  of  the  homestead.^  One  who 
holds  a  claim  antecedent  to  homestead  acquisition  will  not  be 
affected  by  his  delay  till  other  property  has  been  exhausted 
by  other  creditors.^  A  third  person,  purchasing  the  home- 
stead under  a  mortgage  sale,  has  no  right  to  compel  a  creditor 

1  Davis  V.  Wetherell,  13  Allen,  60.  Tucker  v.  Kenniston,  47  N.   H.  267 ; 

2Pittsfield  Bank  v.  Howk,  4  Allen,  Fogg  v.  Fogg,  40  N.  H.  288. 

847 ;  Silloway  V.  Brown,  12  Allen.  30.  6  Barker    v.    Eollins.    30   la.    412; 

3  Swan  V.  Stepliens,  99  Mass.  7.  Kemerer  v.  Bournes.  53  la.  172. 

••Richardson  v.  Wallis,  5  Allen,  78.  ■?  Dilger  v.  Palmer,  60  la.  117. 

8  Laconia  Bank  v.  Rollins,  63  N.  H.  ^  Denegre  v,  Hawn,  14  la.  240. 
66;  Kensell  v.  Cobleigh,  62  N.  H.  298 ; 


716  PLEADING    AND    PRACTICE. 

of  the  mortgagor  to  exhaust  other  property  before  the  home- 
stead.' It  cannot  be  done  by  a  cross-action,  when  the  right 
to  compel  the  exhaustion  of  other  property  exists :  the  method 
is  by  special  direction  in  the  execution.^ 

Because  the  homestead  interest  is  favored  by  the  constitu- 
tion of  a  state,  a  mortgagor  was  accorded  the  right  of  demand- 
ino:  that  his  homestead  be  discharged  from  mortga<''e  incum- 
brance  by  the  application  of  proceeds  in  excess  of  what  was 
necessary  to  satisfy  the  debt  on  which  the  pro])erty  had  been 
sold.  Judgment  creditors,  whose  inoperative  liens  antedated 
the  morto-aoe,  thought  themselves  entitled  to  the  excess  of 
proceeds  — i.  e.,  those  remaining  from  a  sale  made  to  satisfy 
a  debt  for  which  the  homestead  was  indisputably  liable.  But 
the  court  applied  the  money  to  the  extinguishment  of  the  lien 
immediately  operative.^ 

After  a  mortgage  given,  a  creditor  obtained  judgment 
against  the  mortgagor;  and,  pending  execution,  the  defend- 
ant had  a  part  of  what  he  had  mortgaged  set  apart  as  his 
homestead.  It  was  held  that  the  judgment  creditor  could 
compel  the  mortgagee  to  exhaust  the  homestead  portion  first.-' 

A  senior  mortoao;e  covered  land  includino-  the  homestead. 
A  junior  mortgage  covered  the  same,  except  the  homestead. 
The  holder  of  the  latter  foreclosed,  and  he  bought  the  land 
at  the  judgment  sale.  The  senior  mortgagee  sat  by,  relying 
upon  his  seniority  of  lien.  When  he  came  to  foreclose,  the 
late  junior,  who  was  now  the  owner,  claimed  that  the  senior 
must  make  his  money  on  what  remained — the  homestead. 
But  the  senior  insisted 'that  he  must  first  exhaust  the  other 
property  liable  under  his  mortgage  —  that  is,  the  land  just 
sold  and  bought  in  by  the  junior  —  and  so  the  court  said." 

Where  a  mortgage  is  upon  exempt  property  with  other 
property  not  exempt,  and  it  is  held  to  be  a  general  assign- 
ment, creditors  cannot  share  in  the  proceeds  of  the  sale  unless 
there  has  been  a  w^aiver  of  exemption  in  their  favor.** 

1  Barker    v.    Rollins,    30    la.    412 ;  back,  87  N.  C.  216  ;  Curlee  v.  Thomas, 

Kemerer  v.  Bournes,  53  la.  172.  74  N.  C.  51.                                              * 

'^Ib.  4  State  Savings  Bank  v.  Harbin,  18 

3  Leak  v.  Gay,  107  N.  C.  468;  Code  S.  C.  425. 

N.  C,  §i;  501,  3766;  Wilson  v.  Pat-  i>  Equitable  Ins.  Co.  v.  Gleason,  62 

ton,  87  N.  C.  818 ;  Butler  v.  Stain-  la.  277 ;  Grant  v.  Parsons,  67  la.  31. 

«  Collier  v.  Wood,  85  Ala.  91. 


RELATIVK  TO  FORKCLOSURE.  717 

If  a  tract  be  sold,  except  a  homestead  carved  out  of  it  under 
an  order  of  court ;  and  if  the  proceeds  be  sufficient  to  satisfy 
a  senior  judgment  on  a  debt  antedating  the  exemption  law; 
and  if  the  equities  of  parties  are  not  reserved  in  the  order  of 
sale, —  may  a  junior  judgment  creditor  provoke  the  sale  of 
the  homestead  to  pay  the  senior?  No;  for  the  sale  of  the 
tract,  less  the  homestead,  would  have  already  paid  him.' 

The  finding  of  the  trial  court  that  the  plaiiitid'  runiished 
the  material  with  which  the  defendant  built  his  dwelling- 
house,  and  that  the  note  (sued  upon)  was  given  for  the  nuite- 
rial,  was  held  conclusive  on  ap})eal.  So,  the  homestead  was 
liable  to  execution  when  the  judgment  on  the  note  could  not 
be  satisfied  by  the  sale  of  personalty.'-' 

Ejectment:  The  purchaser  of  a  homestead  at  a  sale  under  a 
mortgage  given  by  the  debtor  for  purchase-money  is  entitled 
to  possession;  and  he  may  eject. the  occupant.  He  is  entitled 
to  a  writ  of  assistance  upon  satisfying  the  court  that  the  sale 
was  to  foreclose  a  purchase-money  mortgage  executed  by  the 
debtor.' 

The  plaintiff,  in  a  suit  to  eject  a  widow  from  land  assigned 
her  as  a  homestead,  should  aver  the  character  of  the  title 
under  which  it  was  assigned  —  whether  in  fee  or  for  life ;  foi", 
if  the  former,  the  assignment  is  conclusive  unless  reversed  by 
a  higher  court  on  appeal,^ 

In  an  ejectment  suit,  there  was  a  motion  to  dismiss  the 
plaintiff's  appeal,  on  the  ground  that  the  judgment  had  been 
satisfied.  The  defendant,  in  possession  of  property  claimed 
as  homestead,  under  contract  to  purchase,  had  been  adjudged 
entitled  to  it,  by  the  lower  court,  on  her  payment  of  the  bal- 
ance due  on  the  contract.  She  had  neither  paid  nor  offered 
to  pay ;  nor  had  she  so  pleaded  as  to  warrant  that  court  to 
make  such  ruling.  The  pleading  merely  put  at  issue  the  right 
of  possession.     The  judgment,  so  far  as  this  ruling  was  con- 

1  Shell  V.Young,  32  S.  C.  462,  dis-  » skinner  v.  Beatty,  16  Cal.  156. 
tinguishing  State  Bank  V.  Harbin,  18  Compare  Montgomery  v.  Tutt,  11 
S.  C.  425.  Cal.  190.     See  Dillon  v.  Byrne,  5  Cal. 

2  Tyler  v.  Johnson,    47  Kas.   410.  455. 

On  exhausting  the  excess  when  the  ■•  Hutchinson  v.  McNally  (Cal.),  23 
homestead  exceeds  the  legal  limit,  Pac.  132.  See  85  Cal.  619;  24  Pac. 
see  p.  410.  1071. 


718  PLEADING    AND    PRACTICE. 

cerned,  "  was  entirely  outside  of  any  issue  joined  in  the  cause 
before  the  court.  It  was  entirely  foreign  to  anything  set 
forth  in  either  complaint  or  answer.  There  was  nothing  in 
the  case  on  which  to  base  it.  It  is  suspended,  as  it  were,  in 
mid-air,  without  suj^port  of  any  kind  or  description,  and  is  en- 
tirel}'  irregular  and  erroneous."  ' 

In  an  action  of  ejectment  for  two  tracts,  of  eighty  acres 
each,  the  plaintiff  relied  uj^on  a  mortgage  given  by  the  hus- 
band without  his  wife's  assent.  The  defense  was  that  the 
two  tracts  were  homestead  and  the  mortgage  thereon  void. 
The  jury  allowed  the  defendant  to  retain  one  tract  as  his 
homestead,  on  which  he  resided.  He  had  refused  to  elect  be- 
tween the  two,^ 

When  land  (including  the  homestead  not  selected)  is  sold 
all  together  without  the  wife's  joining  the  husband-vendor 
in  the  deed;  and  is  subsequently  subjected  to  an  execution 
levied  before  the  transaction  mentioned,  the  purchaser  at  the 
private  sale  may  be  ejected  by  the  purchaser  at  the  public 
sale  under  the  execution.  The  suit  to  eject  cannot  be  success- 
fully resisted  on  the  grounds  that  the  wife  did  not  sign  the 
deed  mven  and  that  the  land  sold  under  execution  included 

o 

the  homestead  of  the  vendor  at  public  sale.'' 

Pleading  homestead  against  foreclosure:  Homestead  should 
be  pleaded  in  a  foreclosure  proceeding,  if  the  defendant  does 
not  mean  to  waive  exemption.*  A  junior  mortgagee  may  in- 
tervene in  an  action  to  foreclose,  brought  by  his  senior,  to 
show  that  the  homestead  proceeded  against  is  exempt  from 
the  plaintiff's  claim  while  liable  for  his.^ 

The  burden  of  proof  is  on  the  defendant  who  pleads  home- 
stead against  a  mortgage  in  an  action  brought  to  foreclose.® 
For  it  is  not  to  be  assumed  that  he  has  hypothecated  property 
for  a  consideration  which  he  has  enjoyed,  if  he  had  no  right 

1  Alexander  v.  Jackson   (('al.),  25  Haynes  v.  Meek,  14  la,   320 ;  Collins 

Pac.  415.  V.  Chan  Hand.  48  la.  241 ;  Brumbaugh 

2De  Graffenried  v.  Clark,  75  Ala.  v.  Zollinger,  59  la.  384;  Hemenway 

425.     In  Mississippi,  in  an  action  of  v.  Wood,  53  la.  21. 
ejectment,  homestead  cannot  be  al-        ^  Alley  v.  Bay,  9  la.  509. 
lotted.     Lazar  v.  Caston,  7  So.  321.  «  Webb  v.  Davis,  37  Ark.  551,  as  to 

'First  Nat.    Bank   of  Constantino  a  mortgage  executed  when  the  Ar- 

V.  Jacobs,  50  Mich.  340.  kansas   constitution  of  1868  was  in 

*  Larson  v.  Reynolds,  13  la.    579;  force. 


KELATIVE    TO    FORECL08CKE.  719 

to  do  SO.  The  invalidity  of  his  act  is  not  a  matter  of  pre- 
sumption. 

It  has  been  held  that  the  householder,  after  having  been  a 
party  defendant  to  foreclosure  procecdint^s  against  his  home- 
stead, cannot  afterwards  recover  from  the  ])urchasor  on  the 
ground  that  the  homestead  was  exemjjt  and  therefore  the 
mortgage  invalid.  He  should  have  j)leaded  such  gi'ound  in 
the  foreclosure  suit,  to  make  it  available.'  If  he  has  ar»y  rem- 
edy, it  is  in  equity,  to  set  aside  the  sale.^ 

There  are  many  cases  in  which  householders  have  denied 
the  validity  of  mortgages  executed  by  themselves  on  the 
ground  that  their  wives  did  not  sign.  They  are  not  estopped 
from  setting  up  this  ground,  if  the  statute  renders  such  forms 
of  mortgage  null.  Frequentlv  the  wife  joins  the  husband  in 
setting  up  this  ground,  or  she  appears  alone  to  do  so.''  Even 
though  she  has  signed,  she  may  repudiate  her  act  if  there  was 
not  the  required  acknowledgment.^  If,  however,  she  should 
plead  the  want  of  acknowledgment,  in  some  states  her  defense 
would  be  of  no  av^ail,  if  she  has  freely  joined  in  giving  and 
signing  the  mortgage,  acting  as  though  she  were  a  feme  sole!' 

In  a  foreclosure  against  land,  of  which  the  defendant  claims 
an  undivided  interest,  he  may  state  facts,  in  his  plea  setting 
up  his  interest,  tending  to  show  his  inability  to  designate  his 
homestead  boundaries  before  the  partition,  and  thus  make 
valid  defense  to  the  suit  to  foreclose  the  mortgage.® 

In  a  foreclosure  suit,  those  should  properly  be  made  parties 
defendant  who  have  issued  executions  ag'ainst  the  morto:ao:ed 
property.  They  may  be  charged  with  the  conversion  of  such 
property  though  it  be  in  the  custody  of  the  sheriff,  as  he  holds 
subject  to  their  judgment  and  execution  lien.^ 

Receiver:  Under  some  circumstances,  a  receiver  may  be  ap- 
pointed, in  an  action  to  foreclose  a  mortgage,  though  the 
property  is  a  homestead.  It  may  be  hotel  property  about  to 
be  diminished  in  value  by  being  closed,  so  that  such  appoint- 

1  Hayoes  v.  Meek,  14  la.  320.  *  Sandwich  Co.  v.  Zellmer  (Minn.), 

2  Coon  V.  Jones,  10  la.  132.  51  N.  W.  379. 

3  Ante,  ch.  XII,  i;§  3-20 ;  Hancock        6  Jenkins  v.  Volz,  54  Tex.  G36. 

V.  Herrick  (Arizona),  29  P.  13.  '  Silberberg  v.  Trilling  (Tex.),  18  S. 

<  Phillips  V.  Bishop,  31  Neb.  863.  W.  591. 


720  PLEADING    AND    PliACTICK. 

ment  would  be  advisable.  The  court  has  equitable  jurisdiction 
to  make  the  appointment  when  its  exercise  becomes  necessary 
to  protect  the  rights  of  a  mortgagee  not  resting  on  the 
common-law  principle  of  a  legal  estate  transferred  to  him  by 
the  mortgage.^  In  an  action  for  forcible  detainer,  in  which 
the  defendant  claimed  homestead,  a  receiver  was  appointed.^ 
But  it  is  questionable  whether  it  is  ever  proper  to  take  posses- 
sion of  a  mortgagor's  homestead  while  proceedings  to  fore- 
close are  pending.  Certainly  it  is  not  proper  practice,  as  a 
general  rule.  An  application  for  such  an  appointment  should 
always  be  refused  when  the  amount  of  the  mortgage  debt  is  a 
subject  of  contention  in  the  case.' 

When  an  executor  is  ordered  by  the  court  to  turn  over 
property  to  a  receiver,  he  cannot  continue  to  hold  it  on  the 
ground  that  it  is  homestead.^  In  administering  his  deceased 
wife's  estate,  he  cannot  set  up  an  original  claim  of  homestead 
exemption  against  her  creditors,  in  his  return  to  a  rule  to 
show  cause  why  he  should  not  turn  over  the  property  of  the 
estate  to  a  receiver.^ 

Marshaling  liens:  It  is  necessary  that  the  court  determine 
the  rank  of  liens,  in  a  foreclosure  suit  upon  notes  and  advance- 
ments secured  by  mortgage,  when  a  third  person,  cited  as  a 
defendant,  claims  a  lien  upon  the  land  as  prior  to  that  of  the 
mortgagee.  The  court  may  decree  the  payment  of  such  per- 
son from  the  proceeds  of  the  sale,  when  he  has  been  made  a 
party  defendant  (though  he  has  filed  no  cross-bill),  when  he 
has  set  up  his  lien,  as  paramount,  in  his  answer  to  the  plaint- 
iff's bilL^     Greater  particularity  of  pleading  would  be  required 

1  Lowell  V.  Doe,  44  Minn.  144;  27  N.  E.  1090.  Scbolfield,  C.  J.: 
Finch  V.  Houghton,  19  Wis.  163;  -'The  Will  County  National  Bank 
Schreiber  v.  Carey,  48  Wis.  208 ;  Hy-  had  a  mortgage  on  real  estate  be- 
nian  v.  Kelly,  1  Nev.  148 ;  Pasco  v.  longing  to  Andrew  Dillman,  and  oc- 
Gamble,  15  Fla.  562;  Hollenbeck  v.  cupied  by  him  as  a  homestead,  to 
Donnell,  94  N.  Y.  342.  secure  the  payment  of  promissory 

2  Bromley  v.  McCall  (Ky.),  18  S.  W.  notes  for  $9,493.87,  and  an  advance  to 
1916.  the  amount  of  $5,830.29.     John  W. 

•*  Callanan  v.  Shaw,  19  la.  183.  Nadelhoffer    had    a    judgment   lien 

■•  Harmon  v.  Wagener,  33  S.  C.  488.  against    the    same    real    estate    for 

5  Harmon  v.  Wagener,  33  S.  C.  488 :  $8,647.49.     Bill  in  chancery  was  filed 

12  S.  E.  98 ;  Code  S.  C,  i^§  265,  360.  by  the  bank  in  the  circuit  court  of 

s  Dillman  v.  Will  Co.  N.  Bank  (111.),  Will  county  against  Dillman  and  his 


RELATIVE  TO  FORECLOSURE. 


721 


in  some  states.  It  will  be  noticed,  in  the  case  cited,  that  the 
court  confined  its  authorities  to  its  own  state,  but  the  prin- 
ciple would  be  recognized  in  nian}^  others.  Had  the  contest- 
ing lien-holder  come  voluntarily  into  court,  his  pleading  should 
have  been  by  cross-bill;  but  as  he  was  made  a  party  defend- 
ant by  the  mortgagee  for  the  purpose  of  having  the  question 
of  priorit}''  settled,  it  was  clearly  proper  that  he  should  state 
his  case  and  make  his  prayer  in  his  answer.* 


wife  and  Nadelhoffer,  praying  for  a 
foreclosure  of  its  mortgage,  the  set- 
ting off  of  homestead,  and  a  sale  of 
the  mortgaged  premises.  Nadelhof- 
fer answered,  claiming  that  his  lien 
was  paramount  to  that  of  the  bank. 
On  the  hearing,  decree  was  rendered 
that  the  mortgage  be  foreclosed,  ap- 
pointing commissioners  to  set  off 
homestead,  directing  a  sale  of  the 
mortgaged  property  after  homestead 
should  be  set  off,  and  that  the  pro- 
ceeds of  the  sale  be  applied,  after 
payment  of  costs,  (1)  to  the  payment 
of  the  amount  due  upon  the  notes  se- 
cured in  the  mortgage  ;  (2)  to  the  pay- 
ment of  the  amount  due  Nadelhoffer 
upon  his  judgment;  and  (3)  to  the 
payment  of  the  amount  due  for  the 
advances  secured  by  the  mortgage. 
The  appellate  court  of  the  second  dis- 
trict aflfirmed  this  decree.  It  is  now 
contended  here,  a '.  ',t  was  contended  in 
the  appellate  court,  and  the  same 
arguments  that  were  filed  there  are 
refiled  here  in  support  of  the  conten- 
tion, (1)  that  it  was  error  to  grant 
Nadelhoffer  affirmative  relief  on  his 
answer  alone,  he  having  filed  no 
cross-bill  in  the  case;  (3)  that  the 
commissioners  to  assign  ho!nestead 
were  not  sworn  before  a  proper  of- 
ficer; (3)  that  the  decree  erroneously 
cuts  off  the  right  of  dower  of  Dill- 
man's  wife.  We  concur  in  the  judg- 
ment of  the  appellate  coui't,  and  re- 
fer to  the  reasoning  in  support 
thereof,  as  found  in  the  opinion  filed 
46 


in  the  case,  as  a  sufficient  answer  to 
the  arguments  by  appellants'  counsel 
(Dillman  v.  Bank,  36  111.  App.  272); 
and  we  deem  it  necessary  to  add 
only:  (1)  The  bank  was  entitled  to 
have  its  mortgage  foreclosed  and  the 
priority  of  the  liens  upon  the  prop- 
erty determined  under  the  bill  which 
it  filed.  Ellis  v.  Soutiiwell,  29  111. 
549;  Soles  v.  Sheppard,  99  111.  616. 
The  relief  to  Nadelhoffer  was  only  in- 
cidental to  and  inseparable  from  the 
relief  to  appellee,  and  was  therefore 
necessarily  allowable  upon  his  an- 
swer alone.  See  cases  supra.  (2) 
These  commissioners  were  appointed 
by  the  court  of  equity,  and  not  by  an 
officer  having  an  execution,  as  pro- 
vided by  sec.  10,  ch.  52,  Rev.  St 
1874 ;  and  they  were  therefore  not  re- 
quired to  take  an  oath  before  the 
person  therein  designated.  The  court 
of  equity  unquestionably  had  power 
to  direct  that  they  take  an  oath  for 
the  performance  of  their  duties  be- 
fore any  officers  empowered  by  law 
to  administer  oaths  generally,  and 
notaries  public  are  thus  empowered. 
Sec.  2.  ch.  101,  Id.  (3)  The  decree 
does  not  assume  to  divest  the  wife  of 
Dillman  of  her  inchoate  right  of 
dower,  and  it  is  impossible  that  it  can 
have  that  effect  The  other  objec- 
tions in  the  arguments  to  the  decree 
below  are,  in  our  opinion,  trivial,  and 
demand  no  answ^er.  The  judgment 
is  affirmed." 
1  See  generally,  as  to  determining 


722  PLEADING    AND    PRACTICE. 

Ordinarily,  no  form  of  action  is  peculiar  to  homestead  liti- 
gation; "the  test  of  exemption  or  non-exemption  is  not  the 
form  of  action  pursued,  but  the  consideration  of  the  debt 
due;"  that  is,  whether  the  suit  is  for  purchase-money  or  like 
claim  not  affected  by  exemption,  or  is  for  something  not  col- 
lectible from  the  homestead.^ 

Married  homestead  beneficiaries  sold  and  conveyed  their 
homestead,  taking  the  grantee's  note  secured  by  lien  on  the 
property.  This  divested  the  property  of  its  homestead  char- 
acter. The  grantors  cannot  plead  that  the  land  is  their  home- 
stead against  the  right  of  indorsees  to  whom  they  have  trans- 
ferred the  note  to  establish  a  lien  against  the  land.  They  do 
not  occupy  the  position  of  one  having  made  an  executory 
agreement  to  sell  homestead.  Had  they  any  right  left  after 
giving  the  deed  of  sale,  on  the  ground  that  the  grantee  had 
not  paid  the  price,  they  parted  with  that  when  they  trans- 
ferred the  note  given  for  the  price.  The  part  of  the  answer, 
setting  up  homestead  right  in  bar  of  the  foreclosure  of  the 
lien,  was  met  by  demurrer  which  was  sustained.^ 

Sureties:  A  husband  and  wife  each  owned  eighty  acres,  and 
the  homestead  was  upon  half  of  his  tract.  All  was  mortgaged 
together  by  them,  and  subsequently  the  mortgagee  released 
the  wife's  land.  The  wife  was  surety  for  the  debt.  It  was 
decided  that  the  homestead  could  not  be  sold  till  all  the  other 
land  that  had  been  mortgaged  should  be  exhausted ;  that  prior 
to  such  exhaustion,  the  homestead  could  not  be  sold  even  to 
protect  the  wife  as  surety ;  that  the  rule  above  stated  takes 
precedence  of  the  rule  that  the  surety  may  have  the  principal's 
property  exhausted  before  his  own.^  In  thus  holding,  it  was 
said  b}'^  the  court:  "The  plaintiff  in  this  case,  by  voluntarily 
releasing  a  part  of  the  land  mortgaged,  cannot  defeat  the 
beneficent  purpose  of  the  statute  to  secure  a  home  for  the 
family,  and  cause  the  home  to  be  sold  which  the  statute  de- 
clares shall  be  exempt.  The  rules  prevail  in  all  cases  of  sure- 
ties for  homestead  owners.  In  the  case  of  the  wife  who  be- 
comes the  surety  for  her  husband,  there  are  persuasive  equities 

the  rank  of  liens  and  assets,  Wood  v.  2  De  Hymel  v.   Mortgage  Co.,  80 

Wheeler,  7  Tex.  13 ;  Webster  v.  Bron-  Tex.  493 ;  16  S.  W.  311. 

stow,  5  Bush,  522.  3  Bockholt  v.  Kraft,  78  la.  661 ;  la. 

» Ransom  v.  Duff,  60  Miss.  901.  Code,  §  3168. 


EQUITY    KII1.E    AS    TO    ORDER    OF    SAI,K.  723 

which  require  her  to  stand  by  the  contract  which  the  hiw 
made  for  her.  She  ought  not  to  be  a  party  to  an  attempt  to 
rob  her  husband  and  her  family  of  their  home.  Her  duty  to 
her  family  demands  that  she  should  preserve  her  home,  rather 
than  her  individual  property."  ' 

Sureties  on  a  collector's  bond,  who  had  been  compelled  to 
pay,  asked  to  be  subrogated  to  a  lien  resting  on  land  which 
the  collector  had  acquired  and  exchanged  for  the  land  which 
ho  held  as  his  homestead.  It  was  held  that  they  should  bo 
subrogated  to  the  right  to  the  land  last  acquired,  but  only  so 
far  as  it  was  in  excess  of  the  monetary  homestead  limit.^ 

The  sureties  on  the  bond  of  a  deceased  guardian,  forced  to 
repair  his  default,  are  entitled  to  subrogation  to  the  remedy 
against  the  deceased's  homestead  which  the  wards  have.'  The 
general  rule,  that  payment  must  precede  subrogation,*  finds 
an  exception  here  (as  the  court  mentions),  since  the  only 
means  by  which  the  sureties  could  reimburse  themselves  after 
payment  would  be  by  the  sale  of  the  homestead.  "It  would 
be  unreasonable  to  require  the  sureties  first  to  pay  the  plaint- 
iffs the  debt  their  father  owed  them,  and  then  sue  them  to 
have  the  money  back  again." ' 

§  12.  Equity  Rule  as  to  Order  of  Sale. 

The  equity  rule  which  saves  the  property  subject  to  a  junior 
lien  till  the  senior  has  first  exhausted  property  not  subject  to 
it,  when  the  senior  lien  covers  both,  is  applicable  to  liens  upon 
homesteads.®  So  far  as  that  rule  is  concerned,  there  is  no 
difference  between  a  homestead  and  other  property.  Duly 
mortgaged  by  husband  and  wife,  or  subjected  to  a  valid  lien 

^  lb.   A  dissenting  opinion,  by  Rob-  right  of  the  surety  tc  have  it  appro- 

inson,  J.,  takes  the  view  that  the  sec-  priated  to  repay  the  money  he  has 

tioD  cited  refers  to  the  rights  of  the  paid  for  his  principal,  tlie  equities,  it 

debtor    and    creditor,   not  those  of  seems  to  me,  are  with  the  surety." 

principal  and  surety  ;  and  that  ''the  2  Crawford  v.  Richeson,  101  III.  351. 

right  of  parties  to  a  contract  of  pay-  3  State  v.  Atkins.  r)3  Ark.  303. 

ment,  to  fix  the  order  in  which  the  ^  McConnell  v.  Beattie,  34  Ark.  113. 

mortgaged  property  shall  be  sold  to  •''State  v.  Atkins,  svpra;  Dugger  v. 

pay  the  debt,  is  unimpaired.   .    .    As  Wright,  51  Ark.  235. 

between  the  right  of  the  debtor,  who  •'IMyers'    Appeal,    78    Pa.   St.    452; 

has   voluntarily   pledged   his   home-  I'ittman's    Appeal,  48    Pa.    St   315; 

stead  for  the  payment  of  the  debt,  to  Shcllj-'s  Appeal,  3G  Pa.  St.  373  ;  Jones 

hold  it  as  against  his  surety ;  and  the  v.  Dow,  18  Wis.  258. 


724  PLEADING    AND    PRACTICE, 

of  any  sort,  it  is  as  liable  to  forced  sale  as  any  other ;  and  it 
cannot  be  favored  to  the  prejudice  of  a  junior  mortgagee  or 
other  junior  lien-holder,  any  more  than  other  realty  so  situ- 
ated, if  the  junior  claims  the  benefit  of  the  rule.  In  the 
absence  of  any  statutory  inhibition  of  the  exhaustion  of  the 
homestead  before  other  property,  when  both  are  subject  to  a 
valid  lien  or  liens,  there  is  no  difference  between  the  two, 
except  with  reference  to  the  wife's  interest. 

Manifestly,  the  owner's  homestead  right  is  no  lien  or  incum- 
brance on  his  own  property  to  be  marshaled  with  liens  held 
by  others.  To  hold  that  he  can  be  the  owner  and  yet  the 
holder  of  an  incumbrance  on  what  he  owns  is  absurd.  Were 
he  to  purchase  an  outstanding  lien  against  his  own  property, 
it  would  be  lost  by  confusion ;  canceled,  as  though  paid.  His 
right,  therefore,  to  compel  a  mortgagee  to  exhaust  other  prop- 
erty before  touching  the  homestead  is  not  that  which  a  junior 
mortgagee  may  exercise  under  the  equity  rule.  It  is  statu- 
tory—  not  equitable  —  wherever  it  exists. 

The  opposite  idea  has  had  some  judicial  sanction.  It  has 
been  given  as  a  reason  for  the  exhaustion  of  other  property 
before  touching  the  liable  homestead,  that  the  "homestead 
right  is  equal,  if  not  superior,  in  dignity  to  any  other  legal  or 
vested  right,  and  should  not  be  disturbed  short  of  a  fair  sale, 
to  the  highest  bidder,  of  all  other  property."  '  Similar  ex- 
pressions are  found  in  several  cases  scattered  through  the  books. 
One  would  like  to  know  definitely  whether  the  owner's  incum- 
brance on  his  own  is  to  be  ranked  as  equal  to  any  held  by 
others,  or  is  su]ierior.  There  seems  to  be  a  confusing  distinc- 
tion between  the  owner's  homestead  right  and  his  property 
right  in  the  same  homestead,  in  the  above  extract. 

The  qvasi-est'dte  of  the  wife,  in  the  homestead,  when  she 
does  not  own  the  property,  is  in  the  nature  of  an  incumbrance. 
While  she  cannot  claim  her  prospective  estate  of  dower  as  a 
present  incumbrance  to  be  brought  into  competition  with  con 
ventional  and  other  liens,  she  may  nrge  her  present  qtiasi- 
estate  of  homestead  as  possessing^  the  character  of  an  incum- 
brance upon  her  husband's  title,  and  perhaps  she  may  invoke 

1  Tvvogood  V.  Stephens,  19  la,  412 ;  Colby  v.  Crocker,  17  Kas.  527 ;  Ray  v. 
Adams,  45  Ala  168, 


EQUITY  KULE  AS  TO  ORDER  OF  SALE.  725 

the  equity  rule.'  Her  right  to  interfere,  liowcvcr,  is  usn.ally 
protected  by  statute  so  that  she  need  not  resort  to  that  rule. 
If  the  mortgage  or  other  lion  with  wliicli  she  would  compete 
is  not  one  validly  created  without  her  agency  (as  it  may  be  in 
some  states  under  certain  circumstances),  but  is  one  whiclishe 
helped  to  put  ujwn  the  homestead,  it  wouhl  be  relieved  from 
her  competition,  so  far  as  concerns  the  equity  rule.  Neitlicr 
she  nor  her  husband,  after  having  waived  all  homestead  right 
by  virtue  of  the  mortgage  given  by  them,  has  any  sort  of  incum- 
brance which  can  be  set  up  in  competition  with  the  mortgage 
lien.2  In  the  absence  of  express  waiver,  it  has  been  allowed  the 
beneficiaries  to  have  the  homestead  reserved  from  sale  till 
other  property  was  exhausted.'' 

It  is  misleading  to  say  unnualifiodly  that  homestead  is  an  in- 
cumbrance upon  land,  to  be  marslialed  in  competition  with 
the  vendor's  lien  and  other  liens.  An  incumbrance  upon 
what?  Upon  itself?  The  vendor's  lien  is  upon  the  home- 
stead: can  there  be  a  homestead  lien  upon  the  homestead? 
Does  the  owner  owe  anything  to  himself,  and  does  he  have 
the  debt  secured  upon  his  own  property?.  The  contradictory 
character  of  the  affirmation  is  apparent. 

It  is  never  allowable  to  treat  homestead  as  an  incumbrance, 
unless  we  have  reference  to  the  right  of  occupancy  or  usufruct 
held  by  some  one  w^ho  does  not  hold  the  title  —  some  such 
right  resting  on  the  fee  of  the  land.  With  reference  to  such 
rights,  it  may  be  said  that  one  who  buys  land  at  a  judicial 
sale,  "  subject  to  homestead,"  takes  it  subject  thereto  as  an  in- 
cumbrance."* 

It  is  frequently  said  that  the  right  of  the  debtor  to  a  home- 
stead is  superior  to  that  of  his  creditor  to  have  his  debt  paid 
by  sale  of  the  land.^  These  two  rights  cannot  properly  be 
brought  into  competition.  The  debtor,  owning  his  homestead, 
has  a  right  to  it ;  the  creditor,  having  a  lien,  has  a  right  i/i  it. 

1  See  McLaughlin  v.  Hart  46   Cal.  See  Knight  v.  Leak,  2  Dev.  &  Bat. 

639  ;  Hanson  v.  Edgar,  34  Wis.  653.  138 ;    Sheppard   v.    Simpson,   1    Dev. 

'-'Searle  v.  Chapman,  121  Mass.  19.  244;  Jackson  v.  Jackson,  13Ired.  lo9; 

SBrown  V.  Cozard,  68  111.  178;  Mc-  Hodge  v.    Houston,    12    L-ed.  108; 

Arthur  v.  Martin,  28  Minn.  80.  Clarke  v.  Trawick,  56  Ga.  859. 

4  Wyche  v.  Wyche,  85  N.  C.  96 :  »  Pope  v.  Harrip,  94  N.  C.  62 ;  Bat- 
Barrett  V.  Richardson,  76   N.   C.  429.  Icr  v.  Staiuback,  87  N.  C.  216. 


726  PLEADING    AND    PRACTICE. 

There  is  confusion  when  wc  attempt  to  marshal  a  jus  in  re 
with  a  jus  ad  rem.  One  wlio  has  the  right  to  a  thing  may 
have  that  thing  incumbered  by  a  right  in  it  held  by  another. 
Many  rights  in  it  may  be  held  by  many  other  persons,  and 
there  may  be  differences  of  rank  in  these  rights;  but  the 
ownership  of  the  property  on  which  all  these  incumbrances 
rest  does  not  have  his  right  to  it  marshaled  with  the  rest. 

"VVe  cannot  consistently  say  that  the  right  of  exemption  is 
higher  or  lower  than  the  vendor's  lien.  It  is  not  a  lien.  It  is 
not  a  privilege  in  the  ordinary  sense.  True,  courts  often 
speak  of  it  as  a  lien  ^  or  privilege.  It  is  a  privilege,  certainly, 
to  be  allowed  to  hold  property  free  from  liability  to  execution, 
but  not  such  a  privilege  as  may  be  marshaled  with  "  liens  and 
privileges  "  within  the  meaning  in  law  when  these  are  thus 
yoked  together,  as  commonly  found. 

The  incumbrance  is  relative.  Among  heirs,  adults  may  have 
their  interest  incumbered  (in  a  sense)  by  the  minors'  quasi- 
estate  in  the  homestead  during  minority ;  but  the  latter,  hav- 
ing equal  rights  in  the  fee,  cannot  be  said  to  have  their  own 
interests  incumbered  by  their  own  present  right  of  occupancy. 
So,  a  purchaser  of  the  homestead  fee  may  find  tht»  right  of  oc- 
cupancy to  be  an  incumbrance,  as  to  himself;  but  the  occupant 
is  not  like  a  mortgagee  so  as  to  be  considered  the  holder  of  an 
incumbrance. 

It  is  not  strictly  correct,  therefore,  to  say  that  one  entitled 
to  exemption  may  lose  his  ranh  and  privilege  by  his  own 
laches}  He  may  forfeit  his  exemj)tion  right  by  laches,  but  it 
is  not  a  matter  of  rank  between  liens  and  privileges.  It  is 
quite  common,  however,  to  find  homestead  classed  among  in- 
cumbrances, in  decisions;  and  if  it  is  convenient  and  helpful 
to  do  so,  the  practice  will  be  continued ;  but  the  evident  dif- 
ference between  this  and  other  incumbrances  should  be  kept 
in  view. 

§  13.  Statutory  Rule  as  to  Order  of  Sale. 

The  statutes,  much  alike  in  several  states,  on  the  subject  of 
rendering  liable  homestead  property  the  last  exhaustable,  may 
be  illustrated  by  one.     This  statutory  rule  is  expressed  in  the 

1  Alexander  v.  Jackson,  92  Cal.  514.        2  Lawler  v.  Yeatman,  37  Tex.  669 ; 

Rogers  v.  Green,  35  Tex.  735. 


STATUTOEY  RULE  AS  TO  OUDKR  OF  SALE.  727 

provision  that  tlie  homestead  sliall  not  be  sold  "except  to  sup- 
ply the  deficiency  remaining  after  exhausting  the  other  prop- 
erty of  the  debtor  liable  to  execution."  ' 

If,  upon  exposure  of  the  other  property  to  sale,  there  be  no 
bids,  that  is  "  exhausting"  so  as  to  justify  offering  the  home- 
stead with  it.^  If,  contrary  to  the  inhibition,  the  homestead 
be  prcmatui'ely  sold,  the  sale  may  be  set  aside  till  all  the  other 
liable  ])roperty  shall  have  been  exhausted ;  and  then  a  resale 
may  be  directed  by  the  court,  if  still  found  necessary.''  Sale 
is  void  while  there  is  valid  homestead  occupancy.'  T>ut  tliere 
is  not  valid  homestead  occupancy,  if  upon  a  lawful  lien  there 
has  been  a  lawful  levy  and  sale.  The  claimant  must  show  that 
his  right  existed  when  the  decree  against  him  was  made."' 

There  is  no  presumption  of  the  existence  of  any  other  prop- 
erty. He  who  complains  that  it  was  not  first  exhausted  must 
first  allege  and  prove  that  such  property  exists.^  On  such 
showing  before  sale,  there  will  be  special  dii^ection  given  by 
the  court  in  the  execution  that  the  "  other  property  "  be  first 
offered  for  sale.^  But  if  the  defendant  does  not  allege  and 
prove  the  existence  of  such  property,  or  point  it  out  to  the 
officer,  but  stands  by  and  sees  the  homestead  sold  without 
interfering  or  objecting,  he  has  waived  his  rights.^ 

One  who  has  prosecuted  his  privileged  claim  to  judgment 
may  stand  back  and  see  all  the  other  property  but  the  home- 
stead exhausted  by  other  creditors,  and  be  guilty  of  no  laches 
and  lose  no  right  against  the  homestead  on  which  his  lien 
rests.^ 

In  a  suit  of  the  nature  of  a  creditor's  bill  to  satisfy  a  judg- 
ment on  a  homestead  worth  more  than  the  maximum,  a  decree 

iMcClain's     Iowa     Code,    §     3167  v.  Croes,  10  111.  442;  Mitchell  v.  Hay, 

(1992) ;  Code  of  1873,  §  1992 ;  Lambert  37  Ga.  581 ;  Tucker  v.   Kenniston,  47 

V.  Powers,  36  la.  18 ;  Foley  v.  Cooper,  N.  H.  267. 

43  la.  376.  *  Green  v.  Marks,  25  111.  204. 

2  Burmeister  v.  Dewey,  27  la.  468 ;  s  Reinback  v.  Walter,   27  111.  393 ; 
Eggers  V.  Redwood,  50  la.  289 ;  Bram-  Pratt  v.  Delevan,  17  la.  3C7. 
baugh  V.  Shoemaker,  51  la.  148.  Sale  <>  Stevens    v.    Myers,    11    la,     183; 
below  value.     See  Sigerson  v.  Siger-  Owens  v.  Hart.  62  la.  620. 

son,  71  la.  476.  "  Barker  v.  Rollins.  30  la.  412. 

3  Lay  V.  Gibbons,  14  la.  377 ;  Brad-  « Foley  v.  Cooper,  43  la.  376.     See 
ford  V.    Limpus,    13    la.   424;    Bur-  McCleary  v.  Ellis,  54  la.  311. 
meister  v.  Dewey,  27  la.  468 ;  Stewart  **  Denegre  v.  Hauu,  14  la.  240. 


728  PLEADING    AND    PRACTICE. 

applying  the  excess  was  sustained.^  Lions,  which  had  attached 
before  the  rendition  of  the  judgment,  were  accorded  the  higher 
rank,  as  a  matter  of  course. 

To  prevent  the  sale  of  a  homestead  under  execution  when 
it  is  ultimately  liable,  there  must  be  a  schedule,  showing  what 
other  property  the  defendant  has  Avhich  is  liable  to  forced 
sale,  when  the  statute  exacts  it,  as  in  some  states  it  does.'^ 
Without  such  disclosure,  he  cannot  have  a  supersedeas  to  stay 
the  sale.  Failure  to  disclose  is  not  necessarily  a  forfeiture  of 
the  homestead  right;  but,  after  sale  and  delivery,  he  would 
recover  only  by  bringing  an  action  for  possession.  If  he  per- 
mits his  homestead  to  be  sold,  by  failing  to  file  the  required 
schedule,  he  imperils  his  homestead  right  and  ''  takes  the 
chances  of  defeat "  upon  the  issue  made  by  him  thereafter.* 
If  he  claims  after  levy  and  before  sale,  and  notice  is  given  to 
the  executive  officer,  the  sale  must  be  subject  to  his  claim.* 

Where  homestead  property  is  liable  for  purchase-money 
only  after  all  other  property  of  the  debtor  has  been  exhausted, 
it  is  held  that  a  judgment  on  a  claim  for  such  money  should  be 
a  personal  one  against  the  debtor  without  any  special  lien 
against  the  homestead.^  The  general  lien  created  by  the  judg- 
ment would  cover  the  homestead,  however,  with  all  the  other 
property  of  the  debtor.  The  judgment,  however,  should  not 
be  merely  personal,  if  the  claim  for  purchase-money  was  not 
merely  personal  but  was  secured  by  the  vendor's  lien  or  by  a 
conventional  lien. 

It  has  been  held  that,  after  a  homestead  has  been  sold  under 
execution  in  a  suit  at  law,  and  the  owner  has  moved  to  set  the 
sale  aside  on  the  ground  that  the  property  was  exempt,  it  can- 
not be  shown  by  the  adverse  party  that  the  judgment  was  for 
purchase-money;  for  the  plaintiff  should  have  yjroceeded  in 
equity."  This  seems  to  be  altogether  too  nice.  The  motion 
having  been  made,  it  was  certainly  competent  for  the  adverse 
property  to  den}'^  its  ground,  that  the  sold  property  was  ex- 

'  Tingley    v.    Gregory    (Neb.),    46  ^  Blivens  v.  Jolmson,  40  Ga.  297. 

N.  W.  419.  SGreeno  v.  Barnard,   18  Kas.   518, 

«  Ark.  Act  of  March  18, 1887 ;  Mansf.  distingmshing  Pratt  v.  Topeka  Bank, 

Dig.,  §  300G.  13  Kas.  570. 

3  Brown   v.    Peters,   53   Ark.    183;  <>  Tunstall  v.  Jones,  25  Ark.  272. 
Chambers  v.  Perry,  47  Ark.  400. 


CLAIMING    KKFOKE    EXECUTION    SALE.  729 

empt,  and  the  defense  —  that  the  sale  was  under  a  judr,'-mont 
for-  purcliase-inoney — was  equivalent  to  the  answer  that  tiie 
property  was  not  exempt  as  to  that  doljt.  And  it  was  a  good 
answer  in  a  suit  at  law  —  it  may  he  thougiit,  by  one  who  has 
studied  tiie  case  less  than  the  court  did.  The  pro])er  and  u^>ual 
method  of  enforcing-  the  lien  for  ])urchase-money  is  l»y  a  ])ro- 
ceeding  in  equity,'  though  it  is  not  invariably  adopted.-  The 
vendor  may  choose  to  sue  at  law  and  take  his  chances  of  mak- 
ing his  money  out  of  any  liable  property  of  his  debtor.  But 
his  safer  course  is  to  enforce  his  lien  directly  upon  the  indebted 
property,''  unless  his  state  statute  makes  provision  for  a  suit 
at  law  with  a  saving  of  his  lien  right."*  The  homestead  is  liable, 
under  the  vendor's  lien  for  purchase-money,  so  long  as  any 
portion  of  the  debt  remains  unpaid.^ 

§  14.  Claiiiiiii^  Before  Execution  Sale. 

"Whether  the  judgment  debtor  must  claim  his  homestead  of 
the  officer  in  charge  of  an  execution,  before  sale,  to  save  his 
right  from  being  considered  as  waived  or  lost  by  his  laches^  is 
a  question  that  has  been  answered  by  the  courts  of  some  states 
in  the  affirmative,  and  of  others  in  the  negative.  The  affirma- 
tive answer  is  based  on  the  general  rule  that  one  must  assert 
his  right,  however  absolute,  when  it  is  attacked ;  that  any 
right  of  property  may  be  w^aived,  even  ])assively;  that,  at 
least,  the  officer  is  not  bound  to  set  off  homestead  when  it  has 
not  been  claimed.''     The  negative  answers  are  based  on  tlie 

1  Williams  v.  Young,  17  Cal.  403;  (Ga.),  13  S.  E.  123);  Taffts  v.  IWan^ove, 
Pincliaiu  v.  Collard,  13  Tex.  333.  14  Cal.  47 ;  Kelly  r.  Dill,  23  Minn.  435 ; 

2  Durham  v.  Bostick,  72  N.  C.  357 ;  Sullivan  v.  Lafayette  County,  61 
McAlpin  V.  Burnett,  19  Tex.  497 ;  Miss.  271 ;  Perkins  v.  Bragg,  29  Ind. 
Chambliss  v.  Piielps,  39  Ga  380.  507 ;  State  v.  Manly,  15  Ind.  8 ;  Nash 

^Lavvler  v.  Yeatman,  37  Tex.  669;  v.  Farrington,  4  Allen,  157;  Colson  v. 

Rogers  v.  Green,  35  Tex.  735.  Wilson,  58  Me.  416;  Smith  v.  Chad- 

4Redfield  v.  Hart,  12  la.  355.  wick,  51  Me.  515;  Behymer  v.  Cook, 

5  Bush  V.  Scott,  76  111.  525:  Harris  5  Colo.  395;  Caldwell  v.  Truesdale 
V.  Glenn,  56  Ga.  94  ;  Cook  v,  Crocker,  (Ky.),  13  S.  W.  101 ;  Kirk  v.  Cassady 
53  Ga.  66.  (Ky.).  12  S.  W^  1039 ;  Choice  v.  Charles. 

6  Brumbaugh  v.  Zollinger,  59  la.  7  S.  V.  171  ;  Ryan  v.  Pettigrew,  7  S.  C. 
384;  Herschfeldt  v.  George,  6  Mich.  146  ;  Norris  v.Kidd,  28  Ark.  485(under 
468;  Melton  v.  Andrews,  45  Ala.  454;  Const,  of  1868);  Chambers  v.  Perry, 
Bell  V.  Davis,  42  Ala.  460 ;  Crow  v.  47  Ark.  400  (under  Const,  of  1874) ; 
Whitworth.  20  Ga.  38  (see  Ragland  Carrier  v.  Sutherland,  54  N.  H.  475 ; 
V.  Moore,  51  Ga.  476 ;  Burns  v.  Lewis  Lidd  v.  Qiiiun,  52  N.  H.  344 ;  Barney 


730 


PLEADING    AND    PRACTICE. 


absolute  character  of  the  right.^  There  is  a  middle  ground: 
a  sale  of  a  homestead  made  in  the  absence  of  a  claim,  when 
void  as  to  the  quantity  and  value  exempt,  may  be  good  as  to 
any  excess.^  A  bid  for  the  whole,  however,  could  not  be  col- 
lected of  the  bidder  who  gets  only  a  part.  The  sale  would  be 
voidable  at  his  instance,  but  not  on  the  motion  of  the  home- 
stead beneficiary  as  judgment  debtor,  or  on  that  of  the  judg- 
ment creditor.  In  other  words,  where  failure  of  the  benefici- 
ary to  claim  before  sale  is  not  waiver,  there  is  no  impediment 
thrown  in  the  way  of  the  sale  of  the  excess  by  the  homestead, 
law. 

If  an  indivisible  homestead  be  sold,  the  proceeds  may  be  ad- 
justed between  the  creditor  and  the  beneficiary.' 


V.  Leeds,  51  N.  H.  253;  Barney  v. 
Keniston,  58  N.  H.  168;  Buzzell  v. 
Hardy,  58  N.  H.  331 ;  Butt  v.  Green, 
29  O.  St.  667  (compare  Sears  v. 
Hanks,  14  O.  St.  298) ;  Frost  v.  Shaw, 
3  O.  St.  270 ;  Kahoon  v.  Krumpus,  13 
Neb.  321 ;  Spitley  v.  Frost  (Neb.),  15 
Fed.  299;  Willistou  v.  Schmidt,  28 
La.  Ann.  416 ;  Kuntz  v.  Baehr,  28  La. 
Ann.  90;  Miller  v.  Sherry,  2  Wall. 
237;  Black  v.  Currau,  14  Wall.  463 
(criticised  in  Hartwell  v.  McDonald, 
69  III.  293).  In  Illinois,  where  the 
rule  is  that  the  homestead-holder 
forfeits  nothing  by  not  claiming  of 


26  Ark.  228  (see  Chambers  v.  Perry, 
47  Ark.  400);  Goldman  v.  Clark,  1 
Nev.  516;  Helfenstein  v.  Cave,  3  la. 
287;  Ray  v.  Yarnell,  118  Ind.  112; 
Vogler  V.  Montgomery,  54  Mo.  584 
(see  Shindler  V.  Givens.  63  Mo.  394); 
Smith  V.  Rumsey,  33  Mich.  184; 
Beecher  v.  Baldy,  7  Mich.  488 ;  Willis 
V.  Matthews,  46  Tex.  483 ;  Seligson  v. 
Collins,  64  Tex.  314  ;  Pierson  v.  Truax, 
15  Colo.  223 ;  25  Pac.  183 ;  Pardee  v. 
Lindley,  31  111.  187 ;  Hoskius  v.  Litch- 
field, 31  111.  137;  Moore  v.  Titman,  33 
111.  368 ;  Conklin  v.  Foster.  57  111.  104 ; 
Newman  v.  Willitts,  78  111.  397 :  Bar- 


the  officer  before  sale,  it  was  yet  held    rett  v.  Wilson,  102  111.  302 ;  Nichols  v. 
that  a  widow  who  does   not  claim    Spremont,  111  III.  631 ;  Moriarty  v. 


but  allows  the  estate  to  be  partitioned 
and  sold,  thus  loses  her  right.  Wright 
V.  Dunning,  46  111.  271.  In  Alabama, 
the  homestead  character  attaches 
only  during  the  life  of  the  owner 
who  leaves  neither  widow  nor  chil- 
dren. Code,  ^  2507.  When  his  claim 
of  homestead  has  been  rightly  made, 
an  execution  creates  no  lien  on  the 
homestead  property  —  life-estate  or 
remainder  —  and  the  owner  may  sell 
the  fee.  Caldwell  v.  Pollak,  91  Ala. 
353. 

'Snider  v.  Martin,  55  Ark.  139;  17 


Gait,  112  111.  373;  Mitchell  v.  Sawyer, 
115  111.  650:  Burns  V.  Lewis  (Ga.),  13 
S.  E.  123 ;  Lessley  v.  Phipps,  49  Miss. 
790 ;  Trotter  v.  Dobbs,  38  Miss.  198 
Lambert  v.  Kiunery,  74  N.  C.  350 
Abbott  V.   Cromartie,   72  N.  C.  292 
Vannoy  v.   Hagmore,  71  N.  C.  128 
Taylor  v,  Rliyne,  65  N.  C.  531 ;  Lute 
V.  Reilly,  65  N.  C.  20. 

2Leupold  V.  Krause,  95  111.  440; 
Stevens  v.  Hollingsworth,  74  111.  202 ; 
Loomis  V.  Gerson.  62  111.  11. 

3  Wood  V.  Wheeler,  7  Tex.  13; 
North  V.  Shearn,  15  Tex.  174.     Com- 


S.  W.   712;  Robinson  v.  Swearingin    pare  Paschal  v.  Gushman,  26  Tex.  75. 
(Ark.),  17  S.  W.  365 ;  Hughes  v.  Watt, 


CLAIMING    BEFORE    EXECUTION    SALE.  731 

There  is  universally  applicable  reason  for  trcatin^^  the  sale 
of  the  homestead,  in  executioK  of  an  ordinary  judgment  under 
which  it  is  not  liable,  as  void  when  the  officer  has  given  the 
judgment  debtor  no  o])portunity  of  claiming,  and  when  the 
latter  could  not  assert  his  right  for  any  cause.  Ordinarily,  he 
is  presumed  to  know  of  the  levy,  to  read  the  advertisement, 
to  have  notice;  but,  when  it  is  the  duty  of  the  officer  either 
to  set  off  homestead  before  sale  or  to  give  special  notice  to  the 
judgment  debtor  that  he  may  take  the  necessary  steps  if  he 
desires  to  withhold  his  homestead  from  his  creditors,  such  pre- 
sumption would  not  prejudice  him.  lie  may  be  really  in  ig- 
norance of  what  is  going  on,  because  of  his  absence,  sickness, 
deception  practiced  upon  him,  or  any  one  of  a  hundred  con- 
catenations of  circumstances  difficult  to  preconceive. 

The  officer  knows  that  what  he  sells  is  homestead.  He 
knows  the  records  —  the  registered  declaration  —  the  inscrip- 
tion of  Homestead  in  the  margin  of  the  defendant's  recorded 
title  —  whatever  the  law  requires  to  be  done  and  has  been 
done,  he  knows  ;^  that  is,  he  is  presumed  to  know.  If  no 
homestead  has  been  dedicated,  platted,  recorded  or  in  any- 
wise specially  designated  by  the  beneficiary,  still  the  officer  is 
presumed  to  know  the  law  which  gives  the  defendant  the 
right  of  homestead  in  some  of  his  realty;  and  in  the  very 
piece  w^hich  he  is  about  to  sell  if  that  is  all  the  debtor  has.  It 
may  be  larger  than  what  the  law  exemjits,  or  the  debtor  may 
have  more  than  one  piece:  yet  the  officer  knows  that  there  is 
a  legal  right  of  homestead  wrapped  up  in  the  debtors  real 
property.  There  is  nothing  to  relieve  the  presumption  of 
knowledge  in  his  case.  If  the  statute  imposes  upon  him  the 
duty  of  giving  the  debtor  special  notice  of  the  levy,  and  of  the 
proposed  sale  of  the  homestead ;  or  if  it  requires  him  to  cause 
homestead  to  be  set  off  before  sale,  he  cannot  disregard  it  with 
impunity  and  save  the  sale  from  nullity  and  himself  from  lia- 
bility to  damages. 

On  the  other  hand,  there  is  such  a  thing  as  a  debtor  desirous 
of  paying  his  debts,  and  willing  that  his  home  should  go  for 
the  purpose.  May  he  not  waive  his  right  to  claim  exemption? 
May  he  not  waive  his  absolute  right?  If  the  statute,  provid- 
ing for  his  notification,  imposes  upon  him  the  task  of  looking 

1  Ray  V.  Yaruell,  118  Ind.  113. 


732  PLEADING    AND    PRACTICE. 

after  his  right,  and  does  not  strike  with  nulhty  a  homestead 
sale  when  unclaimed,  shall  we  say  that  the  purchaser  of  an 
unclaimed  homestead  gets  no  title? 

The  judgment  for  ordinary  debt  contracted  after  notice 
bears  no  lien  upon  the  homestead;  it  creates  a  general  lien 
upon  all  the  defendant's  property  except  the  exempt  portion ; 
its  general  lien  becomes  special  upon  a  particular  piece  of 
liable  propert}'^  by  levy  upon  it.  The  question  is  whether 
such  judgment  and  such  levy  may  affect  a  homestead  if  the 
owner  consents.  There  seems  no  reason  to  the  contrary,  if 
he  is  an  unmarried  owner,  and  if  the  policy  of  the  law  to  con- 
serve family  homes  is  not  disregarded.  If  he  has  a  wife,  or  a 
wife  and  children,  in  the  enjoyment  of  the  home,  there  may 
be  good  reason  for  keeping  a  shelter  over  his  and  their  heads 
despite  himself.  While  the  law  favors  the  payment  of  debts 
as  much  as  the  saving  of  homes,  there  is  a  difference  between 
statutes  of  different  states  as  to  whether  the  judgment  debtor 
may  successfully  waive  not  only  his  own  rights  but  those  of 
his  family.  A  universally  applicable  rule,  therefore,  cannot 
be  laid  down.  It  cannot  be  doubted,  however,  that  the  judg- 
ment debtor  and  his  wife,  re])resenting  their  children  if  they 
have  any,  may  notify  the  officer  of  their  relinquishment  of 
the  homestead  right,  however  absolute  it  may  be ;  and  that 
the  policy  of  the  state  w^ould  have  it  yield  to  such  relinquish- 
ment, since  it  allows  the  beneficiaries  to  abandon ;  and  that 
thereafter  the  officer  may  go  on  and  sell  and  give  good  title 
to  the  purchaser. 

When  homestead  has  not  been  previously  declared,  dedi- 
cated and  recorded;  and  when  the  occupied  home  property 
exceeds  the  statutory  limitation  and  is  yet  indivisible;  and 
when  a  certain  sum  is  exempt  to  the  debtor, —  the  rules  are 
somewhat  different  from  those  governing  previously  estab- 
lished homesteads.  The  claim  of  a  sum  from  the  proceeds 
may  be  made  after  sale. 

If  application  has  been  made  for  the  setting  off  of  a  home- 
stead, and  notice  given  to  the  officer  before  sale,  the  purchaser 
takes  subject  to  the  homestead.'  The  sheriff  must  give  no- 
tice—  written  notice  is  required  by  some  statutes  —  to  the 

1  Kilgore  v.  Beck,  40  Ga.  296.  .See,  as  to  allotment  by  the  court,  In  re 
Schmidt's  Estate  (Cal.),  29  Pac.  714. 


THE    PEEFEKABLE    I'EACTICK    AS    T(J    CI. AIMING.  <  oo 

plaintiff  or  his  attorney  that  homestead  has  l)een  dainied  by 
the  dei'enihint.  If  lie  fails  to  do  so,  and  the  ])l:iintilf  becomes 
the  purchaser,  the  sale  may  be  set  aside  on  iiu)ti(>n.'  Even 
the  ])rivate  purchaser  of  homestead  property  which  was  after- 
wards sold  by  the  sheriff  under  execution  against  the  vendor, 
Avho  attorned  to  the  successful  bidder  at  the  sheriff's  sale  and 
thus  recognized  that  sale,  was  held  to  be  not  estopped  from 
bringing'  an  action  to  set  the  sheriff's  sale  aside.^ 

§  15.  The  Profera])le  Practice  as  to  ClaimiiiJ?. 

What  is  the  proper  practice  as  to  claiming?  Whether  the 
exemption  is  absolute  or  not;  whether  the  courts  in  any  state 
hold  claiming-  before  sale  essential  or  not,  the  better  rule  may 
be  ex|)res3ed  in  a  monosyllable :  Claim.  To  follow  this  rule  is 
to  do  no  harm  even  when  claiming  is  not  necessary  to  avoid  the 
presumption  of  waiver.  Its  positive  good  lies  in  the  preven- 
tion of  future  litigation.  No  true  lawyer  will  seek  unneces- 
sarily to  precipitate  his  client  into  the  vortex  of  a  law-suit. 
How  much  better  to  obey  the  simple  rule  than  await  the  pur- 
chaser's suit  of  ejectment  and  be  obliged  to  defend !  How 
much  better  than  to  resort  to  an  injunction  to  prevent  the 
sale,  if  mere  claiming  will  suffice ! 

Where  non-claiming  (after  the  levy  has  been  made  which 
brings  home  to  the  debtor  knowledge  that  his  exempt  prop- 
erty is  imperiled)  is  deemed  waiver,  no  argument  is  necessary 
to  show  the  importance  of  the  rule:  Claim.  So,  whatever 
the  effect  of  claiming  upon  the  validity  of  the  sale,  it  is  al- 
ways better  to  take  the  simpler  course. 

Where  the  exemptionist  is  not  affected  by  the  sale,  but  may 
prosecute  his  right  after  his  home  has  gone  into  the  hands  of 
a  purchaser,  how  long  may  he  wait?  May  he  lie  still  for 
years,  till  the  purchaser  has  improved  it,  enhanced  its  value, 
paid  the  taxes,  and  expended  upon  it  much  of  his  time  and 
money?  May  the  exemptionist  then  come  in  and  claim  it  all, 
under  the  theory  that  the  purchaser  bought  under  notice  — 
not  special  —  but  that  general  notice  which  the  statute  and 
the  householder's  occupancy  gave  him? 

A  statute,  providing  that  the  right  of  exemption  shall  not 

1  Allen  V.  Towns,  90  Ala  479 ;  Ala.  2  Beckmann  v.  Meyer,  75  Mo.  333. 
Code,  §  2521.  For  allotment  to  debtor,  see  ch.  22. 


T34 


PLEADING    AND    PUACTICE. 


be  lost  by  omitting  to  select  and  claim  homestead  before  the 
sale  of  the  debtor's  property  under  execution,  was  so  con- 
strued, in  a  case  involving  it,  as  to  leave  the  ])urchaser  in  a 
quandary  for  an  indefinite  time,  not  knowing  whether  the  de- 
fendant would  claim  or  waive;  and,  because  of  this  very  un- 
certainty —  the  possibility  of  this  eventual  waiver  —  the 
purchaser  was  held  to  have  bought  something  which  was  the 
object  of  the  price  paid,  so  long  as  the  debtor  should  stand 
silent.^     He  was  held  to  have  obtained,  by  his  purchase  at  the 


1  Snider  v.  Martin,  55  Ark.  139;  17 
S.  W.  712.  Hemingway,  J.  :  "Under 
the  constitution  of  1868,  it  was  held 
that  the  right  of  a  debtor  to  hold  a 
homestead  exempt  from  sale  imder 
execution  was  a  personal  privilege 
which  the  debtor  might  waive,  and 
that  he  would  be  held  to  have  waived 
it  by  failure  to  claim  it  in  the  man- 
ner provided  by  law  before  sale 
under  execution.  Norris  v.  Kidd,  28 
Ark.  485.  It  has  been  held  that  the 
same  rule  obtained  under  the  consti- 
tution of  1874.  Chambers  v.  Perry, 
47  Ark.  400 ;  1  S.  W.  Rep.  700.  The 
act  of  March  18,  1887,  does  not  en- 
large or  in  any  manner  change  the 
character  of  the  right ;  but,  leaving 
the  right  as  it  had  previously  existed, 
this  act  provides  that  the  right  shall 
not  be  lost  or  forfeited  by  the  debtor's 
omission  to  select  and  claim  his 
homestead  before  sale  under  execu- 
tion, nor  by  his  failure  to  file  a  de- 
scription or  schedule  of  the  same  in 
the  office  of  the  recorder,  and,  by  the 
terms  of  a  proviso,  cases  coming 
within  its  provisions  are  left  subject 
to  prior  laws  in  all  respects.  The  ex- 
tent of  the  change  thus  made  is  that 
a  debtor  shall  not  be  considered  to 
have  waived  his  right  to  exemptions, 
in  cases  not  within  the  proviso,  by 
his  failure  to  select  and  claim  them 
before  sale.  It  does  not  provide  that 
the  right  shall  not  be  a  privilege,  or 
that  it  may  not  be  waived  by  the 
debtor.     To  this  extent  the  rule  as 


formerly  announced  is  maintained. 
If  this  case  comes  within  the  pro- 
viso, the  sale  under  execution  car- 
ried the  defendant's  title,  he  having 
omitted  to  select  and  claim  it  before 
sale,  and  the  purchaser  would  be 
bound  upon  his  note  for  the  pur- 
chase-money. But  it  is  insisted  that 
this  case  comes  within  the  rule,  and 
not  within  the  exception,  and  that 
the  debtor  was  not  prejudiced  by 
omitting  to  select  and  claim  his 
homestead  before  sale ;  that,  the 
homestead  being  exempt  from  sale, 
nothing  passed  to  the  purchaser; 
and  that  the  note  for  the  purchase- 
money  was  therefore  without  con- 
sideration and  void.  If  the  premises 
are  true,  the  conclusion  is  correct, 
and  the  question  is,  are  they  true? 
Herm.  Ex'ns,  pp.  320,  321,  424,  note 
4 ;  Freem.  Ex'ns,  §  313,  Is  it  a  fact 
that,  if  the  homestead  right  was 
not  forfeited  by  sale  under  execu- 
tion, nothing  passed  by  the  sale? 
We  think  not.  Before  the  act  of 
1887  the  right  was  a  privilege,  and  it 
is  still  a  privilege.  It  could  then  be 
waived  and  it  may  yet  be  waived. 
As  against  all  the  world  except  the 
debtor  and  his  wife,  the  sale  is  valid, 
and  it  is  valid  against  them,  unless 
they  or  one  of  them  elect  to  defeat 
it.  If  they  neglect  or  refrain  from 
asserting  such  right,  the  debtor's 
title  vests  in  the  purchaser.  It  can- 
not be  said,  therefore,  that  nothing 
passes.     It  is  more  nearly  correct  to 


THE    rKKFKKADLE    I'KACTICK    AS    Tf)    CLAIMING.  735 

sheriffs  sale,  a  defeasible  estate  which  was  a  h^^al  ecjuivalent 
for  the  ])rico  bidden  —  a  siifHcient  consichjration  for  the  note 
given  for  the  pui'cliase-inoney.  He  was  Jield  bound  by  his 
bid,  and  nnaljle  to  resist  the  ]>avment  of  his  note  on  tiie  irround 
that  he  liad  not  obtained  what  he  had  bought  or  meant  to 
buy.  Yet,  on  the  other  hand,  the  judg-ment-debtor  liad  it  left 
in  his  power  to  claim  and  take  back  the  homestead  at  any 
time,  according  to  this  decision.  In  case  the  debtor,  at  any 
future  time,  should  take  the  property  from  the  purchaser 
(who  paid  for  it  and  got  quid  j^ro  (pio  in  the  shape  of  the  de- 
feasible title),  the  court  queried,  or  rather  expressly  withheld 
o])inion,  whether  the  purchaser  would  be  entitled  to  any  re- 
lief. 

Whence  could  relief  come?  Tlie  judicial  sale  was  not  pro- 
voked by  an  owner,  but  by  a  creditor.  The  creditor  is  not 
presumed  to  know  the  title  of  his  debtor,  but  the  owner  does 
know  his  own  title;  he  does  know  whether  he  has  what  he 
sells,  whether  he  sells  privately  or  through  a  court. 

In  the  case  above  mentioned,  the  judgment  creditor  did  not 
warrant  the  title  to  the  homestead:  so  the  purchaser  can  cer- 
tainly get  no  relief  from  him.  The  maxim,  caveat  ewptor,  is 
clearly  applicable.  The  purchaser  can  get  no  relief  from  the 
judgment  debtor,  for  he  did  not  buy  of  him  or  pay  him  anv 
money.  Though  he  paid  his  debt,  it  was  not  done  at  the 
debtor's  request.  There  seems  to  be  no  conceivable  way  in 
w^hich  the  purchaser  can  find  legal  relief,  if  the  now-sleeping 
exemptionist  should  ever  awake  and  divest  him.  "What  bet- 
ter illustration  of  the  pernicious  effect  of  the  doctrine  that 
the  debtor  need  not  claim  when  his  property  is  levied  upon, 
can  be  imagined !    Courts  must  follow  statutes,  and  the  gov- 

say  that  the  purchaser  takes  a  de-  pay  his  bid.  Until  tlie  purchase  has 
feasible  estate,  and  it  is  sufficient  to  been  defeated  by  an  assertion  of 
constitute  a  valuable  consideration,  homestead  rights,  it  is  too  early  to 
Whether  the  debtor  will  claim  his  consider  the  relief  to  which  the  pur- 
exemption  in  this  case  is  uncertain,  chaser  may  then  be  entitled,  or 
He  may  choose  to  have  his  estate  whether  he  will  be  entitled  to  any. 
applied  to  the  payment  of  his  debts  For  the  reason  above  indicated,  the 
rather  than  enjoy  the  benefit  of  his  finding  was  contrary  to  the  evidence, 
exemptions.  If  he  should  do  so,  the  and  the  judgment  must  be  reversed 
purchaser  would  acquire  all  that  he  and  the  cause  remanded." 
expected,  and  should  be  required  to 


736  PLEADING    AND    PRACTICE. 

eniinglaw  in  this  case  may  justify  the  deliverance;  but  there 
ought  to  be  some  time  fixed  beyond  which  claim  cannot  be 
made. 

Though  the  purchaser  may  have  no  relief  at  law,  in  the 
case  above  presented,  since  the  rendition  of  the  decision  against 
him,  yet  may  he  not  find  it  in  equity?  The  debbor  had  his 
debt  paid  with  the  purchaser's  mone}^;  and,  though  not  paid 
at  his  request  so  as  to  give  ground  for  legal  relief,  it  seems 
unconscionable  that  he  should  be  allowed  to  divest  the  pur- 
chaser of  the  property  without  reimbursing  him.  Sheer  jus- 
tice requires  that  the  debtor  should  not  be  profited  at  the  ex- 
pense of  the  purchaser,  when,  by  his  own  passivitv  at  the  time 
of  the  levy  and  sale,  he  caused  the  present  state  of  things. 

There  is  no  disposition  to  submit  argument  after  judgment, 
or  to  criticise  the  opinion  in  the  case  last  cited,  so  far  as  con- 
cerns the  state  in  which  it  was  delivered ;  but  as  like  cases 
may  arise  in  other  states  under  similar  statutes  where  this  de- 
cision is  not  authoritative  —  only  influential  so  far  as  its  rea- 
soning is  sound  — a  word  further  may  not  be  amiss. 

What  title  did  the  purchaser  get?  Was  he  a  mere  tenant- 
at-will?  Was  he  even  that?  A  tenant-at-will  is  "one  who 
holds  lands  as  tenant  at  the  will  of  the  lessor."  ^  The  tenancy 
may  be  terminated  at  the  option  of  either  the  lessor  or  lessee.'^ 

The  tenant-at-will  has  "  nothino:  that  he  can  assign."  ^  He 
has  nothing  that  can  be  called  property  when  his  hold  upon 
it  is  not  for  a  day  or  for  a  moment,  if  some  one  else  may  ter- 
minate his  possession  at  pleasure.  In  the  case  of  lessor  and 
lessee,  the  tenant-at-will  has  some  protection  against  sudden 
divestment  to  his  prejudice;  as,  when  he  has  planted  a  crop, 
he  may  retain  the  land  till  he  gathers  it  or  recover  for  being 
summarily  ousted  before.  But  in  the  case  under  considera- 
tion the  purchaser  was  declared  to  hold  subject  momentarily 
to  defeasance.  There  was  no  mutuality  of  will,  but  the  ter- 
mination of  the  tenancy  was  within  the  sole  behest  of  the 
judgment  debtor.  The  purchaser  had  no  life  estate,  no  estate 
for  years,  no  estate  for  an  hour :  he  was  an  occupant  by  suf- 

1  Anderson's  Law  Diet,  p.  1018,  Bl.  Com.  145-7;  4  Kent's  Com. 
verbo  "  Tenant  at  Will."  111-116. 

2  Davis  V.  Murphy,  126  Mass.  145  ;  ^  jf>. 
Johnson  v.  Johnson,  13  R  I.  468;   3 


THE    PREFERABLE    I'RACTICE    AS    TO    CLAIMING.  I'M 

ferance.  The  only  estate  lie  had  was  an  estate-at-sufferancc ; 
a  holding  by  toleration,  allowance  or  "  negative  permission  " 
of  another.  Ilis  position  was  like  that  of  "a  tenant  for 
years  whose  term  has  expired ; "  a  mortgagor  "  in  possession 
after  foreclosure;"  a  grantor,  bound  to  deliver  at  a  stated 
time,  who  "holds  over  without  authority  from  the  grantee;" 
a  tenant,  "for  the  life  of  another,  after  the  death  of  that 
other." ' 

The  purchaser  held  by  the  suti'erance  of  the  judgment 
debtor,  but  under  such  color  of  title  that  he  might  acquire 
ultimately  by  prescription,  if  the  debtor  should  forbear  to 
claim  long  enough.  Ought  he  not  have  been  allowed  to 
defend  at  law  against  a  suit  on  this  note  for  the  purchase- 
money,  by  pleading  want  of  consideration?  If  he  had  bought 
at  a  judicial  sale  provoked  by  the  owner;  at  a  sale,  for  in- 
stance, under  an  order  of  court  at  the  instance  of  partners  to 
effect  a  partition ;  or  at  a  sale  made  by  a  government,  through 
the  agency  of  a  court,  to  dispose,  at  auction,  of  property 
Avhich  it  owned,  there  would  seem  to  be  no  reason  why  he 
might  not  plead  want  of  consideration  for  a  purchase-money 
note,  if  he  did  not  get  what  he  had  promised  to  pay  for.  Of 
the  selling  owner,  he  ma}^  get  back  the  paid  price.^  There  is 
a  marked  difference  where  a  creditor  has  his  debtor's  property 
sold  in  execution  of  a  judgment,  since  caveat  emptor  then 
applies:  so  the  purchaser  could  not  recover  of  the  creditor 
the  price  already  paid.  But  if  it  had  not  been  paid,  it  would 
seem  that  the  purchaser  may  resist  the  suit  of  the  sheriff  for 
the  unpaid  purchase-money,  if  he  has  given  his  note  therefor 
without  consideration. 

A  purchaser,  sued  by  persons  claiming  that  the  land  pur- 
chased was  their  homestead,  proved  that  he  had  paid  for  the 
land  at  a  judicial  sale,  and  prayed  that  if  the  plaintiffs  should 
be  adjudged  the  owners  of  it,  he  be  accorded  judgment  for  re- 
covery of  the  price  he  had  paid.     The  court  refused  to  charge 

1  Anderson's  Law  Diet.  p.  988,  &  Gar.,  pp.  535-544.  where  distinction 
vcrho,  "  Estate  at  Sufferance."  citing  is  drawn  between  judicial  sales  pro- 
2  Bl.  Cora.  150 ;  Cook  v.  Norton,  48  voked  by  owners  and  such  sales  pro- 
Ill.  26 :  Anderson  v.  Brewster,  44  O.  voked  by  creditors,  as  to  the  recovery 
St.  580,  and  other  cases.  of  the  purchase  price  paid  without 

-  See  authorities  in  Waples  on  Att.  consideration. 
47 


738  PLEADING    AND    PliACTIOE. 

the  jury  to  this  effect.  On  appeal,  the  refusal  was  declared 
to  be  error,  and  the  judgment  against  the  purchaser  was  re- 
versed.^ 

A  purchaser,  who  was  also  the  plaintiff  in  the  suit  whence 
the  execution  was  issued,  sought  to  set  the  sale  aside  by  bill 
in  equity,  because  of  the  defendant's  unsalable  homestead 
right.  The  bill  was  dismissed  upon  the  defendant's  disclaimer 
of  such  right.- 

§  16.  Execution  as  to  Occupancy. 

Execution  cannot  be  effected  to  the  destruction  of  the  fam- 
ily home  and  the  defeat  of  the  policy  of  the  law  to  conserve 
it.  Though  there  be  no  title  left  in  the  family  head  but  a 
right  to  possess  during  the  exemption  period,  he  is  protected 
from  eviction.  In  some  states  the  fee  may  be  subjected  to 
forced  sale  with  his  home  right  resei*ved ;  in  others,  it  cannot 
while  that  right  endures.  He,  with  his  wife's  consent  and 
joinder  when  that  is  required,  or  he  alone  when  it  is  not  re- 
quired or  when  he  is  unmarried,  may  dispose  of  all  his  exempt 
realty  except  his  right  of  occupancy  during  the  exempt  pe- 
riod, and  yet  be  protected  in  what  he  retains.  "While  the  law 
would  protect  the  fee,  it  will  protect  less  —  since  it  is  not  con. 
cerned  about  the  title  so  long  as  possession  is  retained.  So 
it  has  been  held  that  upon  execution  of  the  family  residence, 
before  there  has  been  application  for  homestead,  the  purchaser 
gets  the  fee,  but  not  the  possession  before  the  termination  of 
the  homestead  privilege  of  the  occupants  subsequently  allowed.' 

Judgment  having  been  rendered  against  a  homestead-holder, 
he  donated  his  homestead,  retained  possession,  and  success- 
fully resisted  the  execution.  The  appellate  court,  passing  upon 
his  right,  held  that  he  need  not  have  any  present  interest  or 
estate  in  the  land  beyond  what  is  implied  by  possession,  "  to  sus- 
tain the  claim  of  exemption  as  against  a  debt  or  lien  inferior  to 
the  exemption  right."  This  was  thus  expressed  in  the  syllabus 
of  the  decision,  prepared  by  the  court.  The  chief  justice  said, 
for  the  court,  that  the  homestead  claimant,  who  had  donated 
his  homestead,  "retained  the  very  thing  which  the  laAV  of  ex- 
emption is  solicitous  to  protect.     It  cares  not  how  little  in- 

1  Cline  V.  Upton,  59  Tex.  27.  3  Grace  v.  Kezar,  86  Ga,  697. 

2  Mead  v.  Finley,  47  HI.  406. 


EXECUTION    AS   TO   OCOUPANOY.  T39 

terest  the  debtor  may  have,  so  long  as  he  remains  in  its  actual 
enjoyment.  The  exempt  land  is  '  for  the  use  and  benefit  of 
the  family  of  the  debtor; '  so  sa3's  the  code.  The  exemption 
does  not  depend  on  the  quality  or  duration  of  the  estate 
which  the  debtor  has  in  the  land.  A  tenancy  at  will  or  at 
sufferance  will  protect  it  from  levy  and  sale  as  his  property, 
equally  with  an  estate  in  fee-simple.  The  exemption  attaches 
to  the  land,  not  merely  to  his  estate  in  it.  Our  exemption 
laws  do  not  cut  up  exempt  property  into  divers  estates,  but 
protect  the  physical  thing  as  a  whole  from  levy  and  sale,  so 
long  as  the  exemption  continues."  ^ 

The  title  of  land  is  not  involved  in  a  question  of  the  land's 
exemption  as  a  homestead  from  lev}'"  and  sale.^  But  it  has 
been  held,  under  circumstances  stated  in  the  case,  that  a  levy 
may  be  upon  the  husband's  separate  interest.'  Judgment 
having  been  obtained  jointly  against  a  husband  and  wife,  ex- 
ecution was  directed  against  eighty  acres  belonging  to  her. 
She  lived  with  her  husband  on  his  adjoining  eighty.  Both 
tracts  together  did  not  exceed  either  the  quantitative  or  mone- 
tary limitation.  Her  tract  was  cultivated  as  a  part  of  the 
home  farm.  The  court  held  that  the  execution  could  not  be 
consummated,  because  it  did  not  matter  to  which  spouse  the 
title  belonged.  Either  might  own  half  the  homestead.  "  If 
the  title  to  both  tracts  of  land  had  been  in  the  husband  or 
wife  singly,  the  exemption  would  have  been  recognized ;  and 
it  cannot  be  that  the  fact  that  each  owned  part  of  the  land 
affects  prejudicially  their  claim  to  exemption."  * 

After  a  decree  in  an  action  of  ejectment,  that  the  fee  was 
in  the  plaintiff  subject  to  the  right  of  homestead  in  the  de- 
fendant till  her  youngest  child  should  reach  majority,  the  de- 
fendant was  not  precluded  by  it  from  claiming  her  homestead 
in  a  second  action  brought  to  eject  her  after  the  child  became 
of  age.  The  reason  is  that  so  much  of  the  decree  as  went  to 
fix  the  duration  of  her  homestead  right  was  a  nullity.^     The 

1  Pendleton  v.  Hooper,  87  Ga.  108 ;  citing  Partee  v.  Stewart,  50  Miss.  717 ; 
13  S.  E.  313;  citing  Vanhorn  v.  Mc-  Lowell  v.  Shannon,  601a.  713;  Crane 
Neill.  79  Ga.  123.  v.   Waggoner,   33    Ind.   83;   Orr    v. 

2  Moore  v.  G'Barr,  87  Ga.  205 ;  13  S.  Sliraf t,  22  Mich.  260 ;  Stout  v.  Rapp, 
E.  464.  17  Neb.  462. 

3  Vining  v.  Officers,  86  Ga.  128.  ^Yeates  v.  Briggs,  95  III.  79. 
*  Powers  V.  Sample  (Miss.),  11  So.  — ; 


740  PLEADING    AND    PKACnCB. 

decree  properly  passed  upon  the  fee,  and  properly  licld  it  sub- 
ject to  the  homestead  right ;  but  there  was  no  issue  as  to  the 
time  when  that  right  should  be  terminated.  The  statute 
fixed  the  duration.  The  children's  right  ended  with  their 
minority,  but  the  widow's  right  was  not  wholly  dependent  on 
theirs  —  she  had  an  independent  right  of  homestead. 

Land,  including  homestead,  was  sold  under  execution  to 
TpSij  a  debt  not  privileged  against  the  homestead.  Subse- 
quently, the  debtor  and  his  wife  conveyed  it;  and  their  pur- 
chaser sought,  by  bill  in  equity,  to  remove  the  cloud  cast 
upon  his  title  by  the  execution  sale.  He  failed  to  have  that 
sale  annulled  —  the  court  holding  it  good  except  as  to  the 
debtor's  homestead  interest,  limited  to  a  thousand  dolkxrs  by 
statute.  By  pa^nng  that  sum,  the  purchaser  at  the  execu- 
tion sale  could  hold  the  land.^ 

"When  the  sheriff's  deed  is  a  cloud  upon  the  homestead  title, 
the  remedy  to  remove  it  is  a  bill  in  equity.^ 

A  purchaser  at  execution  sale  was  denied  relief  by  injunc- 
tion to  prevent  a  judgment  debtor  from  claiming  homestead 
in  the  land  he  had  purchased.  The  ground  of  the  denial  was 
that  he  had  no  greater  rights  than  the  judgment  creditor, 
and  might  have  opposed  the  homestead  claim  before  the  or- 
dinary (probate  judge),  and  could  have  appealed  from  his 
decree.'  He  had  bidden  off  the  property  before  the  court  had 
assigned  the  homestead ;  and  the  decision  was  as  to  his  rem- 
edy. As  he  might  have  made  himself  a  party  before  the  pro- 
bate court  and  opposed  the  debtor's  claim,  yet  did  not  avail 
himself  of  the  right,  he  was  denied  the  equitable  remedy  of 
injunction. 

When  the  execution  is  after  the  debtor  has  preferred  his 
claim,  and  the  statute  allows  the  sale  of  the  property  to  x>ay 
the  judgment  creditor  but  reserves  the  right  of  occupancy  to 
the  debtor,  the  writ  and  the  sheriff's  advertisement  should 
show  just  what  title  is  to  be  sold.  The  purchaser  is  thus  in- 
formed that  the  debtor  claims :  so  he  gets  title  subject  to  the 
homestead  occupancy  of  the  debtor.  His  title  will  hold  good, 
but  his  right  to  possession  will  be  postponed  till  the  expira- 
tion of  the  homestead  right,  if  the  debtor's  petition  to  have 

1  Loomis  V.  Gerson,  62  111.  11.  3  Zorn  v.  Walker,  43  Ga,  418. 

2Deffeliz    v.    Pico,    46    CaL    389; 
Kendall  v.  Clark,  10  CaL  17. 


PLEADING    IN   A/ri'ACnMENT   SUITS.  741 

that  right  accorded  be  allowed  by  the  court.'  If,  however, 
the  debtor  is  not  in  actual  occupancy  but  has  let  out  his  homo 
to  a  tenant,  he  cannot  treat  a  levy  upon  it  as  void  on  the 
ground  that  he  intended  to  rc-occupy  at  some  time  in  the  fut- 
ure.'^ Even  when  occu]>ancy  is  not  a  condition  in  the  case  of 
a  widow  Avho  has  derived  a  homestead  from  her  deceased 
husband,  so  far  as  cxem])tion  from  his  debts  are  concerned,  it 
has  been  held  that  her  actual  occuj)ancy  is  essential  to  save  it 
from  execution  for  her  own  debts.'  Actual  occupancy,  as  to 
portions  of  the  premises  claimed  as  exempt,  may  be  inferred 
when  they  are  not  put  to  any  foreign  use  and  when  they  form 
part  of  what  is  really  in  use  as  a  homestead ;  and  thus  they 
may  be  free  from  liability  to  execution.*  But  if  land  is  put 
to  other  use,  such  as  the  continuous  renting  of  it  to  a  tenant, 
it  will  not  be  saved  to  the  owner,  from  execution,  though  he 
may  live  upon  it  and  thus  protect  his  dwelling.^ 

In  some  states,  after  occupanc}^  as  a  condition  to  the  acqui- 
sition of  homestead  has  been  observed,  there  is  no  abandon- 
ment recognized  except  by  the  grant  of  the  premises  or  a 
declaration  of  abandonment  duly  executed  and  filed.  Any 
conveyance  by  quitclaim  or  other  form  of  title  is  abandon- 
ment.® In  such  case,  when  execution  is  pending,  constructive 
occupancy  may  be  sufficient  to  save  the  homestead  —  the  ques- 
tion being  not  whether  there  is  actual  occupancy  but  whether 
there  has  been  an  abandonment  of  the  homestead.'' 

§  17.  Pleading  in  Attacliment  Suits. 

A  homestead  was  attached.  The  owner  should  have  set  up 
his  exemption  in  defense  of  the  attachment  suit;  "it  would, 

1  Jackson  v.  Du  Bose,  87  Ga,  761;  Code  of  Civ.  Proc,  §  1243;  Sansom 
13  S.  E.  916;  Grace  v.  Kezar.  86  Ga.     v.  Harrell,  55  Ark.  572. 

697.    See  Moore  v.  O'Barr,  87  Ga.  206.  7  lu  Texas,  if  there  is  not  actual  oc- 

2  Evans  V.  Caiman  (Mich.),  52  N.  W,  cupancy  where  execution  is  levied, 
787 ;  Hill  V.  Hill's  Estate  (Tex.),  19  S.  the  property  is  considered  as  aban- 
\V.  1016.  doned,  though  formerly  a  homestead. 

3Gowan  v.  Fountain  (Minn.),  52  N.  Wilson  v.  Swasey  (Tex.),  20  S.  W.  4S. 

W.  862.  But  if  the  property  is  then  in  occu- 

*  Leavell  v.  Lapowski  (Tex.).  19  S.  pancy  by  the  debtor,  it  is  held  ex- 

W.    KiOl,     concerning    a    "business  empt,  though  the  title  was  acquired 

homestead."  after  the  judgment  sued  upon   liad 

s  McDonald  v.  Clark  (Tex.),  19  S.  W.  been  recorded.   Frieberg  v.  Walzerin 

1023.  (Tex.),   20  S.  W.  60.     For  abandon- 

« Faivre  v.  Daley,  93  Cal.  664 ;  Cal.  meut  in  general,  see  eh.  18. 


742  PLEADING    AND    PRACTICE. 

without  doubt,  have  been  the  better  practice,"  the  court  said, 
when  passing  upon  an  injunction  against  sale  under  the  at- 
tachment judgment.  The  ground  for  the  injunction  was  that 
the  sale  and  transfer  thereby  would  becloud  the  plaintiff's 
title.  There  was  record  evidence  of  the  exemption;  the  dec- 
laration had  been  duly  made ;  the  word  Homestead  had  been 
inscribed  in  the  margin  of  the  plaintiff's  recorded  title;  the 
plaintiff  had  ownership  of  the  property:  all  duly  alleged  in 
the  plaintiff's  petition  or  affidavit.  Taking  the  allegations  as 
true,  the  levy  upon  the  homestead  was  held  wrongful ;  the 
sale  would  be  a  further  wrong,  and  injunction  was  sustained, 
since  the  plaintiff's  allegations  were  not  controverted.^ 

When  a  homestead  had  been  sold  in  an  attachment  suit,  the 
defendant  and  his  wife  moved  to  set  the  sale  aside  on  the  ground 
that  the  property  was  exempt  by  statute.  The  motion  was 
overruled  and  the  sale  confirmed.  Was  the  question  of  home- 
stead finally  adjudicated  by  the  orders  thus  overruling  and 
confirming?  Whether  it  was  or  not  depended  upon  the  fur- 
ther question  whether  the  wife  should  have  been  made  a  party 
in  the  attachment  proceeding.  And  this  depended  upon  what 
statute  governed.  It  was  finally  decided  that  she  w^as  not  a 
necessary  party :  so  the  sale  was  sustained,  because  governed 
by  a  statute  which  did  not  inhibit  a  sale  of  the  homestead 
without  the  wife's  consent,  though  the  present  statute  does.^ 

A  purchaser,  who  bought  land  after  it  had  been  attached, 
sued  out  an  injunction  against  the  attachment  on  the  ground 
that  the  property  was  his  vendor's  homestead  when  the  at- 
tachment was  laid.  But,  it  appearing  upon  the  trial  that  the 
vendor  had  previously  abandoned  his  homestead  privilege, 
and  that  his  purchaser  had  waived  all  claims  for  damages  on 
account  of  any  liens  upon  the  land,  the  injunction  w^as  denied.' 
This  case  seems  to  imply  that  if  there  had  been  no  abandon- 
ment by  the  vendor  and  no  waiver  by  the  purchaser,  the  at- 

1  Picrson  v.  Truax,  15  Colo.  233 ;  25  heard.     Rulings  of  inferior  courts  on 

Pac.  183.  such  questions  have  been  treated  as 

2Spitley  V.  Frost,  15  Fed.  (Neb.)  final  judgments  reviewable  on  writ 
299;  Rector  V,  Rotton,  3  Neb.  171;  of  error  or  appeal. /&.;  Bo wker  v.  Col- 
State  Back  v.  Carson,  4  Neb.  501.  In  lins,  4  Neb.  494 ;  Eaton  v.  Ryan,  5 
Nebraska,  questions  of  this  character  Neb.  47. 

are  disposed  of  when  motions  to  con-  *  Warren    v.    Peterson    (Neb.),    49 

firm  execution  sales  by  sheriffs  are  N.  W.  703. 


PLEADING    IN    ATfACUMENT   SUITS.  Y43 

tachniont  sale  would  have  been  enjoined,  notwithstanding  the 
neglect  to  })lead  homestead  in  defense  of  the  attachment  suit, 
and  the  acquiescence  of  the  owner  in  the  officer's  seizing  and 
taking  legal  ])ossession. 

That  an  abandoned  homestead  may  be  attached,  and  that 
sale  after  attachment  does  not  affect  the  lien,  no  one  will  ques- 
tion;^ nor  will  any  dispute  the  liability  before  abandonment, 
when  the  suit  is  upon  antecedent  or  other  debts  not  cut  off  by 
the  exemption.^  How  is  the  court  to  know  that  there  has  been 
abandonment,  or  that  there  is  any  fact  to  take  the  attached 
property  out  of  the  rule  of  immunity,  unless  there  be  proper 
pleading,  answer,  and  evidence? 

Abandonment  may  be  effected  in  different  ways ;  and  often 
it  is  questionable  whether  an  act  or  omission  ought  to  be  ad- 
judged to  amount  to  abandonment.  If  the  homestead,  or  a 
part  of  it,  has  been  long  devoted  to  other  than  family  use,  it 
may  have  lost  its  exempt  character,  though  the  owner  did  not 
mean  that  it  should.  When  a  strip  of  land,  crossing  a  home- 
stead, has  been  used  as  a  public  road,  and  the  conduct  of  the 
owner  has  been  such  as  to  induce  the  public  to  use  it  and  the 
township  officers  to  improve  it  as  a  highway,  he  is  estopped 
from  setting  up  his  homestead  right  as  to  the  road,  though  he 
has  never  formally  relinquished  it.^ 

Whenever  abandonment  is  questionable,  and  the  creditor 
attaches,  there  is  something  for  the  court  to  determine  upon 
issue  joined;  and  it  would  seem  erroneous  to  assume  that 
property  held  as  homestead  is  to  be  known  as  such  by  a  sort 
of  intuition,  because  the  statute  makes  homestead  absolutely 
exempt.  Whether  it  is  such  property  as  the  law  makes  abso- 
lutely exempt  is  a  fact  to  be  judicially  determined. 

After  an  attachment  judgment,  a  homestead,  which  was 
the  subject  of  the  attachment,  and  which  had  not  been  claimed 
as  exempt  in  the  proceedings,  was  successfully  claimed  by  the 
debtor,  in  a  separate  action.*  It  has  been  held  that  the  house- 
holder as  defendant  is  not  bound  to  set  up  his  right  of  exemjv 

iLabaree  v.  Wood,  54  Vt.  452;  3  Griswold  v.  Huflfaker  (Kan.),  28 
Godall  V.  Boaidman,  53  Vt.  92.  P.  696. 

2Gilson  V.  Paikhurst,  53  Vt  384;        < geligson  v.  Collins,  64  Tex.  314. 
West  River  Bank  v.  Gale,  43  Vt.  27. 
See  Lamb  v.  Mason,  50  Vt  345. 


744  PLEADING    AND    PRACTICE. 

tion,  when  the  plaintilT  has  made  no  allegations  relative  to  his 
homestead  which  require  an  answer.'  No  reference  to  par- 
ticular property  is  made  in  the  creditor's  petition  for  the  writ 
of  attachment ;  it  is  the  actual  attachment  of  the  homestead 
under  the  writ  which  brings  the  notice  to  the  householder 
that  lien-making  upon  it  is  being  attempted.  If  his  silence 
then  is  acquiescence,  it  is  Avaiver  of  the  homestead  right  as  to 
the  attachment.  But,  as  it  is  not  universally  held  to  be 
waiver,  it  seems  that  there  must  be  other  attending  circum- 
stances to  create  the  presumption  of  waiver,  in  several  states. 

Where,  by  statute,  attaching  does  not  create  a  lien  before 
the  recording  of  a  judgment  sustaining  it,  property  attached 
ma}"^  be  dedicated  as  homestead  before  the  recordation  of  the 
judgment,  and  be  thus  saved  from  lien  and  liability  to  execu- 
tion.^ The  doctrine  is  that  the  inchoate  lien  cannot  be  per- 
fected by  judgment  and  recordation,  if  the  property  which  it 
threatens  becomes  exempt  before  the  recording  —  since  ex- 
empt property  is  not  subject  to  attachment.*  The  doctrine 
has  been  carried  so  far  that  even  after  the  lien  has  been 
matured  in  the  regular  course  of  attachment  proceeding,  upon 
liable  property,  the  defendant  may  dedicate  the  res  as  a  home- 
stead, between  judgment  and  sale,  and  save  it  as  exempt,^ 

While  it  is  true  as  above  stated  (and  true  everywhere),  that 
the  attachment  defendant  is  not  bound  to  plead  homestead  in 
his  answer  when  there  is  nothing  in  the  plaintiff's  allegations 
requiring  it  by  way  of  response;  when,  for  instance,  the  suit 
is  on  a  promissory  note  with  nothing  more  than  the  usual 
averments,  yet  he  ought  to  meet  the  attachment  itself  by  a 
rule  to  dissolve  it.  He  has  perfect  ground  for  the  rule  when 
the  res  is  exempt  by  statute ;  and  if  he  does  not  mean  to  waive 
his  right,  or  subject  it  to  question  of  waiver,  or  expose  him- 
self to  future  litigation,  he  ought  to  have  the  attachment  dis- 
solved so  that  the  inchoate  lien  may  never  assume  perfect 
form.     Certainly  this  would  be  judicious  pleading  in  every 

1  Willis  V.  Matthews,  46  Tex.  483;  SAckley  v.  Chamberlain,  16  Cal. 
Tadlock  v.  Eccles,  20  Tex.  790,  181 ;  Bowman  v.  Norton.  16  Cal.  220. 

2  Wilson  V.  Madison,  58  Cal.  1 ;  Mc-  ^  Lessley  v.  Phipps,  49  Miss.  790; 
Cracken  v.  Harris,  54  Cal.  81 ;  Sulli-  Trotter  v.  Dobbs,  38  Miss.  198. 

van    V.   Hendrickson,  54    Cal.    258; 
Hawthorne  v.  Smith,  3  Nev.  164. 


PLKADING    IN    ATTACHMENT    SUITS.  745 

state,  whether  suH'ci-ing-  the  lien  to  ripen  be  deemed  waiver  or 
otherwise. 

Attachment  is  not  a  general  proceeding  against  property,  to 
conclude  all  the  world ;  but  it  is  a  limited  one  liavinf  refer- 
ence  onl}^  to  the  debtor's  property  right,  to  conclude  only  him 
and  his  ])rivies.  So,  as  the  attachment  of  ])roperty  not  his 
would  amount  to  nothing,  so  the  attachment  of  his  exempt 
property  would  create  no  lien  if  he  would  show  the  court  its 
non-liability.  It  would  be  as  idle  for  the  creditor  to  attach 
exempt  jiroperty  as  to  attach  that  which  his  debtor  does  not 
own,  if  he  knows  that  it  is  exempt  and  that  the  debtor  will 
not  waive  exemption.  Mostl}^  when  such  property  is  attached, 
the  creditor  thinks  it  liable.  He  believes  it  not  homestead,  or 
that  it  has  been  abandoned  as  such.^ 

An  answer,  in  an  attachment  suit,  which  sets  up  homestead 
in  land  attached,  must  allege  its  acquisition  before  the  crea- 
tion of  the  debt  sued  upon,  and  also  family  headship  and  oc- 
cupancy when  the  attachment  was  laid.^  Failure  to  set  up 
homestead  in  defense  of  an  attachment  suit  has  been  held  to 
preclude  the  defendant  from  the  right  to  maintain  an  action 
to  have  homestead  set  apart  to  him,  after  the  confirmation  of 
the  attachment  sale.^ 

A  judgment  for  alimony  may  be  made  to  bear  lien  on  the 
homestead.'*  But  if  the  custody  of  the  children  is  given  to 
the  defendant  (their  father),  who  continues  to  occu])y  the  home- 
stead with  them,  attachment  of  the  premises  to  enforce  a 
general  judgment  for  alimony  has  been  denied.^     It  is  better 

1  In  Arkansas,  it  has  lately  been  de-  had  never  before  been  declared  in 
cided  that  alter  a  debtor's  property  the  state,  but  referred  to  the  follow- 
has  been  attached,  and  the  contin-  ing  cases  in  which  it  had  been  "  ad- 
gent  lien  ripened  into  judgment,  the  verted  to:  "  Irwin  v.  Taylor,  48  Ark. 
debtor  may,  at  any  time  before  the  226 ;  Reynolds  v.  Tenant,  51  Ark,  87 ; 
sale,  claim  his  homestead  in  it.  And  Richardson  v.  Adler,  46  Ark.  43. 
this  ruling  was  made  in  a  case  in  2  Caldwell  v.  Truesdale  (Ky.),  13 
which  a  debtor  claimed  homestead  S.  W.  101.  See  Stewart  v.  Stishex-,  83 
in  property  upon  wiiich   he  had  not  Ga.  297. 

lived  for  six  years,  having  a  home  ^  Kirk  v.  Cassady  (Ky.),  12  S.  W. 

elsewhere,   though    it  was     on    the  1039. 

theory  that  he  meant  to  go  back,  ^  Wilson  v.  Wilson,  40  la.  230, 
Robinson  v.  Swearmgin,  55  Ark.  55,  ^  Byers  v.  Byers,  21  la.  268 ;  Whit- 
17  S.  W.  365.     The  court  said  such  comb  v.  Whitcomb,  52  la.  715;  Stan- 
conclusion    relative    to    attachment  ley  v.  Sullivan,  71  Wis.  585. 


746  PLEADING    AND    rRACTICE. 

for  the  defendant  to  set  up  his  homestead  before  the  decree, 
when  the  plaintiff  has  prayed  for  judgment  bearing  on  spe- 
cific property,  for  alimony.^ 

Damages,  even  nominal,  should  not  be  allowed  for  a  wrong- 
ful attachment  of  a  homestead,  if  no  injury  has  resulted.^ 

§  18.  Eifect  of  Not  Pleading. 

Not  pleading  in  an  attachment  suit  has  been  likened  to  non- 
claiming  when  an  execution  is  levied  in  an  ordinary  suit. 
Where  the  homestead,  by  the  policy  of  the  law  conserving 
homes  for  the  good  of  the  state,  is  made  secure  to  the  benefi- 
ciary whether  he  defend  against  execution  levied  ujion  it  or 
not,  it  was  held  that  there  can  be  no  such  thing  as  fixing  a 
valid  attachment  lien  upon  it  in  a  suit  upon  a  debt  not  privi- 
leged against  it ;  that  should  it  be  sold  on  judgment  for  such 
a  debt,  in  an  attachment  proceeding,  no  title  would  be  con- 
veyed.^ 

Is  there  not  a  difference?  The  ordinary  suit  offers  no  op- 
portunity to  raise  the  question  of  homestead ;  not  till  the  levy 
is  it  known  what  property  will  be  taken  in  execution ;  and 
then  the  defendant  can  oppose  only  as  an  actor  —  as  })laintiff 
in  injunction  or  some  other  proceeding.  But  the  attachment 
suit  with  affidavit,  or  (to  make  the  matter  plainer)  the  petition 
containing  all  the  averments  necessary  to  both  and  duly  sworn, 
charges  some  ground  for  attachment  which  is  inconsistent 
with  the  defendant's  homestead  inviolability.  For  instance, 
the  plaintiff  alleges  the  ground  of  non-residency:  a  non-resi- 
dent can  have  no  homestead.  Or,  he  alleges  that  the  debtor 
has  absconded :  an  absconded  debtor  has,  or  may  have,  aban- 
doned his  homestead.  Or,  he  alleges  that  the  debtor  has  made 
fraudulent  disposition  of  his  property:  this  may  give  rise  to 
the  question  whether  he  has  relinquished  his  homestead  right. 
The  defendant,  by  his  answer,  puts  these  allegations  at  issue. 
He  sees  his  property  taken  by  the  sheriff.  If  his  household 
goods  are  attached,  they  are  under  the  charge  of  a  keeper; 
his  corn  is  locked  up  in  the  officer's  warehouse.     If  his  town 

•  Hemenway  v.  Wood,  53  la.  21.  See  2  state  v.  Springer,  45  Mo.  App.  252. 

as  to  attachment  of  homestead  for  '  Burns  v.   Lewis,  86  Ga.   591 ;    13 

ahmony,  Daniels  v,  Morris,  54  la.  369 ;  S.  E.  123. 
Van  Duzer  v.  Van  Duzer,  65  la  625. 


EFFECT  OF  NOT  PLEADING.  747 

dwelling  or  his  home  farm  has  been  attached,  it  is  in  the  legal 
possession  of  the  slieriff,  and  in  court,  whilu  he  remains  the 
occupant  by  sufiferance.  He  knows  that  his  right  is  at  stake; 
and,  content  to  await  the  trial  of  the  issues  joined,  he  becomes 
plaintiff-in-rule  to  have  the  attachment  dissolved,  Now  sup- 
pose him  to  set  up  every  conceivable  ground  for  dissolution 
except  his  incontrovertible  one  of  exemption;  and  suppose 
he  suffers  defeat  upon  the  rule,  and  defeat  upon  the  trial  of 
the  main  cause,  without  pleading  homestead  at  all :  would  not 
he  have  Avaived  it?  Could  a  stronger  presumption  of  waiver 
be  imagined?^ 

The  defenses  pleaded,  and  all  defenses  that  might  have  been 
pleaded,  have  passed  beyond  his  recall.  The  rule  is  in  all 
suits  in  jx^f'sonain  or  in  rem^  including  attachment  suits  and 
suits  involving  homesteads  as  any  other,  that  adjudication  is 
a  bar  to  subsequent  litigation  as  to  all  matters  which  might 
have  been  tried  under  the  issue  as  well  as  to  those  actually 
tried.  Whatever  is  within  the  proper  scope  of  the  pleadings 
is  deemed  to  be  passed  upon  by  the  judgment  which  becomes 
res  judicata  as  to  all  such  matters;  and  the  fact,  that  any  par- 
ticular thing  was  not  urged  when  it  might  have  been,  creates 
no  exception  to  the  general  rule.  It  is  considered  as  passed 
in  rem  judicatam^  and  therefore  cannot  be  urged  afterwards 
between  the  same  parties,^ 

A  plaintiff  in  error  moved  to  set  aside  a  sale  of  his  land, 
claimed  as  homestead  and  sold  bj'^  him  with  warranty  before 
the  levy  and  judicial  sale.  The  motion  was  overruled;  and 
he  was  held  bound  by  a  decree  in  a  suit  to  enjoin  the  sale, 
brought  by  his  grantee  and  prosecuted  in  the  joint  interest  of 
both,  "Nothing  that  was  involved  in,  and  adjudicated  in, 
that  suit,  in  relation  to  this  sale  and  assignment  of  homestead. 


•  Ante,  p.  556,  on  pleading  waiver,  74-8 ;  Hereth  v.  Yandes.  34  lud.  102 ; 

2  Aurora  City  v.  West,  7  Wall,  82,  Danaher   v.    Prentiss,   22   Wis.    299; 

102;  Beloit  v.  Morgan,  7  Wall.  619-  Rector  v.  Rottou,  3  Neb.  178;  Miller 

623;  Green  V.  Van  Buskirk,  7  Wall.  v.    Sherry,  2   Wall.    237;  Chilson   v. 

139;  Foster  v.  Milliner.  50  Barb.  393;  Reeves,  29  Tex.  276;  Tadlock  v.  Ec- 

Davis  V,  Tallot,  12  N.  Y.  184 ;  Can-  cles,  20  Tex.  791 ;  Lee  v.  Kingsbury, 

field  V.  Monger,   12  Johns.   347;   Le  13  Tex,  70;  Baxter  v.   Dear,  24  Tex, 

Guen   v.   Gouverneur,  1   John,   Cas.  17;  Larson  v.  Reynolds,  13  la.  582; 

436 ;    Comparet  v.   Hanna,   34  Ind,  Wright  v.  Dunning,  46  111.  275. 


748  PLEADING    AND    PKACTICE. 

can  now  be  again  litigated  in  this  motion  bj  any  one  that  was 
a  party  or  privy  to  that  suit."  ^ 

Are  defenses  of  homestead,  which  are  withhekl  when  they 
might  be  urged  under  the  pleadings  in  attachment  litigations, 
to  be  considered  as  out  of  the  general  rule' where  the  statute 
makes  homestead  exem[)tion  absolute?  Is  the  absoluteness  a 
logical  reason  for  making  such  defenses  exceptional?  It  is 
not  so  as  to  other  things.  The  solvent  man  who  does  not  owe 
a  cent,  and  is  under  no  pecuniary  obligation  of  any  sort,  holds 
all  his  property  exempt ;  absolutely  exempt  from  forced  sale. 
Yet  he  must  plead  when  his  property  is  at  issue,  or  take  the 
result  of  the  rule.  The  innocent  man  must  plead  for  his  life 
when  it  is  at  stake  in  court,  and  meet  false  evidence  with  the 
true,  or  he  may  be  hanged  though,  upon  proper  showing,  he 
will  be  found  absolutely  exempt  from  the  halter ;  so  exempt 
from  the  beginning. 

There  are  statutes  which  positively  declare  that  homesteads 
shall  not  be  subject  to  execution  or  attachment  except  for  pur- 
chase-money, taxes,  antecedent  debts,  and  sometimes  one  or 
two  other  things.  Where  they  exist,  and  are  construed  by 
the  courts  to  render  writs  of  fi.fci.  and  attachment  nugatory, 
the  profession  is  doubtless  to  heed  them  in  pleading  and  prac- 
tice; and  it  would  be  idle  to  oppose  them  by  argument  drawn 
from  the  weight  of  authority  in  other  states.  It  is  the  pre- 
ponderance of  authority  in  the  state,  where  the  pending  issue 
is  to  be  tried,  which  alone  controls.  The  reasoning  of  outside 
decisions  may  have  influence  when  those  at  home  are  not  con- 
clusive, but  authority  they  have  none.  Does  it  follow  that 
where  homestead  attachment  is  inhibited,  and  the  courts  there- 
fore hold  it  an  absolute  nullity,  the  defendant's  counsel  may 
not  move  to  dissolve  one?  Is  he  bound  to  disregard  it  and 
resort  only  to  later  remedies?  Suppose  his  client's  goods 
have  bsen  illegally  taken  by  an  officer  under  an  illegal  w^rit  — 
must  he  avoid  a  motion  to  dissolve  for  illegality,  and  recover 
the  goods  by  replevin?  The  latter  would  be  the  more  oner- 
ous, since  he  would  have  to  give  security.     Or,  if  the  home- 

1  Mooney  v.  Moriarty,  36  111.  App.  Wing  v.  Cropper,  35  111.  256 ;  Mooers 
175;  Cole  v.  Favorite,  69  111.  457;  v.  Dixon,  35  111.  208;  Moore  v.  Tit- 
Freeman  on  Judgments,  gi^  163, 174-6.  mun,  33  111.  358  ;  Hoskius  v.  Litch- 
Compare:  Mix  v.  King.  55  111.  434 ;  field,  31  111.  137. 


liri.INOS    ON    QUKSTIONS    OF    EVIDENCE,  749 

stead  has  been  attached  in  contravention  of  a  statute  inhibit- 
ing the  process  —  must  he  abstain  from  the  simple  motion  to 
dissolve  the  attachment,  and  wait  till  his  client  is  about  to  be 
ousted,  and  then  sue  out  an  injunction  and  give  security? 
Doubtless  the  better  practice  is  to  employ  the  simpler  and  less 
onerous  remedy  in  order  to  avail  his  client  of  the  statutory 
inhibition. 

AVhere  the  statute  takes  jurisdiction  from  the  courts  with 
reference  to  the  attachment  and  execution  of  homesteads,  it 
is  manifestly  idle  for  the  creditor's  lawyer  to  attempt  the  crea- 
tion of  a  lien  by  levy  either  before  or  after  judgment  when 
the  fact  of  the  existence  of  the  homestead  is  conceded ;  unless 
he  sees  ground  for  assailing  the  statute  itself  as  to  its  consti- 
tutionality. There  is  an  undefined  limit  beyond  which  the 
legislator  cannot  go  in  cutting  off  Ihe  jurisdiction  of  courts  — 
else  the  judicial  department  might  be  wholly  destroyed  by 
the  legislative,  to  the  contravention  of  the  constitutional  dis- 
tribution of  powers. 

These  stringent  statutes  ought  to  be  read  with  some  qualifi- 
cation understood.  Governments  are  not  to  be  debarred  from 
the  exercise  of  any  of  their  proper  functions  because  of  the 
statutor}'^  inviolability  of  homesteads.  Such  property,  as  well 
as  any  other,  when  forfeited  for  contravention  of  law,  may 
have  judgment  of  condemnation  pronounced  in  direct  proceed- 
ings against  it,  as  suggested  in  the  first  chapter  of  this  treatise. 

§  19.  Rulings  on  Questions  of  Eyidence. 

Papers  filed  in  court,  by  an  applicant,  to  obtain  a  home- 
stead, are  admissible  in  evidence  against  him  in  a  contest  with 
one  of  adverse  interest,  to  show  admissions  relative  to  the 
property  sought  to  be  dedicated.^  The  declarations  of  a 
husband  and  wife,  tending  to  show  the  ownership  of  their 
claimed  homestead  in  another,  thus  denying  their  own  right 
to  it,  may  be  shown  by  an  adverse  party  who  has  an  in- 
terest to  do  so.^  If  they  have  pleaded  that  the  homestead  is 
hers,  they  are  estopped  from  proving  it  his.' 

When  it  is  necessary  to  prove  filed  declarations,  a  duly 
certified  transcript  from  the  record  is  sufficient.'* 

1  Huntington  v.Chisholm,  61  Ga,  270.        3  Bergsma  v.  Dewey,  46  Minn.  357. 

2  Hickey  v.  Behrens,  75  Tex.  488.  *  Stevenson  v.  Moody,  85  Ala.  33 


750  PLEADING    AND    PRACTICE. 

Plaintiffs  sued  upon  a  deed  of  trust  to  land,  executed  to 
their  agent  for  their  use  by  the  defendant  and  his  wife.  The 
land  was  sold,  by  the  agent  as  trustee,  to  the  plaintiffs,  and 
deed  given  them  conveying  good  title,  if  the  land  was  not  the 
homestead  of  the  defendants  when  they  gave  the  trust  deed. 
The  plaintiffs  brought  an  action  of  trespass  to  try  title.  The 
trustee  testified  tiiat  the  husband  told  hira,  before  he  took  the 
trust  deed,  that  the  land  was  not  homestead.  On  the  other 
hand,  it  was  in  evidence  that  the  plaintiffs  knew  of  the  de- 
fendants' occupancy  of  the  land,  as  their  homestead,  at  the 
time.  The  supreme  court  held  that  it  was  error  for  the  lower 
court  to  admit  the  testimony  as  to  the  husband's  declaration. 
The  plaintiffs'  title  was  held  void  because  the  land  was  home- 
stead when  the  trust  deed  was  given.' 

In  a  suit  by  a  wife  charging  collusion  between  her  husband 
and  his  vendee  of  land  on  which  she  claims  homestead,  evi- 
dence of  the  husband's  declarations  respecting  his  residence, 
without  accompanying  evidence  of  the  circumstances  under 
which  he  made  the  declarations  and  without  showing  that  they 
were  made  in  her  presence,  was  held  inadmissible.- 

And  the  declarations  of  the  wife  may  be  admissible  against 
her,  under  certain  circumstances.  If,  free  from  restraint  and 
with  full  knowledge  of  her  rights,  she  should  "  represent  that 
a  certain  tract  of  land  was  not  her  homestead,  and  then  cause 
a  person  to  purchase  it,  she  would  be  concluded  by  her  acts ; 
but  if  the  party  purchasing  should  know  all  the  facts,  or  by 
reasonable  diligence  could  know,  and  it  should  be  apparent 
that  the  married  woman  was  not  entirely  free  from  restraint, 
or  was  not  cognizant  of  her  rights,  whatever  admissions  might 
be  made  under  these  or  similar  circumstances  could  not,  with 
any  propriety,  be  said  to  influence  the  purchaser  or  to  estop 
the  married  woman  from  asserting  her  rights."  ^ 

In  homestead  litigation,  as  in  any  other,  the  omis  is  usually 
on  the  declarant  to  prove  his  allegations.  If  a  defendant 
pleads  homestead,  he  must  show  himself  to  be  within  the  stat- 
ute both  by  his  plea  and  his  evidence.     The  bare  assertion 

(withdrawing    same  titled  case,   83    S.  W.  101 ;   Jacobs  v.  Hawkins,  63 
Ala.  418) ;  Ala.  Code,  §  2788.  Tex.  2. 

iRose    V.   Blankenship    (Tex.),    18        2Newman  v.  Farquhar,60  Tex.  640. 

3  Welch  V.  Rice,  31  Tex.  688. 


RULINGS    ON    QUESTIONS    OF    EVIDENCE.  761 

that  his  lot  or  farm  is  his  homestead  is  not  usually  enough, 
though  it  has  been  held,  as  before  stated,  that  the  use  of  the 
technical  terra  implies  the  value  accorded  by  law  as  exempt.^ 
The  rule  is  that  there  be  allegations  suflficient  to  inform  the 
court,  and  the  opposite  party  of  the  grounds  of  the  claim  or 
defense,  when  homestead  is  put  at  issue. 

A  plea  that  the  homestead  belonged  to  the  wife,  filed  by 
both  husband  and  wife,  will  not  admit  of  proof  that  he  is  the 
sole  owner.-  There  must  be  consistency,  A  defendant  in 
ejectment,  after  maintaining  successfully  that  the  property  in 
question  Avas  homestead,  was  estopped  from  denying  it  in  fur- 
ther proceedings  in  the  same  case.' 

A  wife,  having  a  homestead  right  to  premises  derived  from 
her  former  husband,  may  prove  that  fact  in  an  action  of  for- 
cible entry  and  detainer  against  her,  after  the  record  of  the 
ejectm.ent  suit  (in  which  she  and  her  present  husband  were 
ousted  from  the  premises)  has  been  admitted  in  evidence 
against  her  objection.* 

The  husband  is  a  competent  witness  when  he  is  joined  with 
his  wife  in  a  suit  concerning  their  homestead  owned  by  her.* 

The  statement  of  an  attorney  at  law,  made  at  a  judicial  sale, 
that  the  property  offered  was  a  homestead  and  exempt,  could 
not  be  received  as  competent  to  prove  notice  to  the  purchaser 
when  his  title  was  subsequently  drawn  in  question.® 

The  onus  of  proving  that  a  homestead,  purchased  at  execu- 
tion sale,  was  rightly  sold  under  judgment  upon  a  mechanic's 
lien,  has  been  held  to  be  upon  the  purchaser.  And  proof  that 
the  action  was  for  work,  and  that  the  writ  commanded  the 
officer  to  sell  the  property  owned  by  the  debtor  when  the 
plaintiffs  "filed  their  lien,"  was  held  insufficient.  The  court 
said :  ''  Where  it  is  admitted  .  .  .  that  the  sale  under  the 
execution  was  made  to  satisfy  a  debt  contracted  since  the 
homestead  provision  of  the  constitution  became  operative, 

1  Symonds  v.   Lappin,  83  111.   213  *  Morrissey  v.   Stephenson,  86  111. 

(and  cases  cited  therein) ;  Struble  v.  344. 

Nodwift,   11    Ind.   64;    Amphlett  v.  sKas.  Civ.  Code,  §  323;  Chicago, 

Hibbard,   29    Mich.   304 ;    Daudt    v.  etc.  R.  Co.  v.  Anderson,  42  Kas.  297. 

Harmon,  16  Mo.  App.  203.  6 Morris  v.  Balkham,  75  Tex.  Ill ; 

2Bergsma  v.  Dewey,  46  Minn.  357.  Mooring  v.  McBride,  63  Tex.  309. 

sShubert  v.  Winston  (Ala.),  11  So. 
200. 


752  PLEADING    AND    PRACTICE. 

and  without  assigning  a  homestead  to  the  defendant  in  execu- 
tion, when  he  did  not  hold  one  under  a  previous  allotment, 
.  .  .  the  071US  is  on  the  plaintiff  to  show  the  liability  of 
the  land  to  be  sold  to  satisfy  the  debt."  ' 

"When  the  court  has  found  that  the  debt  was  created  for 
homestead  im])rovements,  and  has  given  judgment  upon  the 
finding,  the  homestead  may  be  sold  under  such  judgment  in 
the  absence  of  leviable  chattels  or  other  personalty.  In  a  case 
brought  on  a  promissory  note,  it  was  proved  that  the  note 
was  given  by  the  defendant  for  material  used  in  building  his 
dwelling-house,  and  the  court  so  found.  Judgment  following, 
the  house  was  not  exempt  as  a  homestead  against  such  debt.^ 

§  20.  Injunction  Against  Sale. 

The  sale  of  a  homestead  under  execution  may  be  enjoined 
w^hen  the  property  is  exempt.  Though  the  sale  would  be  inop- 
erative—  not  passing  the  title  —  yet  if  it  would  cast  a  cloud 
upon  the  title  it  may  be  prevented  by  injunction.  The  ques- 
tion of  exemption  may  be  raised  on  a  motion  to  dissolve  the 
injunction  when  it  has  been  temporarily  granted.  There  is  a 
case  ■where  a  son,  having  his  mother  living  with  him,  made 
declaration  of  homestead  as  the  head  of  a  family.  Upon  her 
death,  execution  was  levied  upon  it  on  a  judgment  against  him 
for  his  debt.  Whether  exemption  ceased  at  her  death,  when 
his  family  headship  ceased,  was  the  question.  The  court  found 
that  it  did  not,  but  rested  the  opinion  on  a  peculiar  provision 
of  statute.^ 

The  next  question  in  the  case  was  whether  the  title  was 
liable  to  be  beclouded  by  sale  under  the  execution.  If  the 
sheriff's  deed  were  given  to  the  purchaser  at  the  sale,  and  if 
it  should  be  followed  by  action  to  eject  the  homestead-holder, 
the  muniments  of  title  which  the  purchaser  (as  plaintiff  in  the 

1  McMillan  v.  Parker,  109  N.  C.  252 ;  son  erecting  it  is  entitled  to  his  lien 

IBS.  E.  764;  Long  V.  Walker,  105  N.  C.  on  the  homestead,  if  the  work  was 

90;  Mobley  v.  Griffin,  104  N.  C.  112;  done  under  contract  with  the  owner, 

McCracken  v.  Adler,  98  N.  C.  400:  and  the  claim  sworn  and  recorded. 

Const.  N.  C,  art.  10,  §  4;  Code,  ch.  41.  Phelps  v.  Shay  (Neb.).  48  N.  W.  896. 

2Tylerv.  Johnson  (Kas.),  28  P.  198.  »  Roth  v.  Insley,  86  Cal.  134;  Cal. 

A  wind-mill  is  a  homestead  ajipurte-  Civ.   Code,  ^§  1261,  1265 ;  Revalk  v. 

nance,  within  the  meaning  of  Neb.  Kraemer,   8    Cal.    73,   and  Bank  v. 

Comp.  Stat.  ch.  54,  §  1 :  so  the  per-  Cooper,  56  Cal.  340,  distinguished. 


INJDNCriON    AGAINST   SALE,  753 

ejectment  suit)  would  ])ro(luce,  would  render  it  necessary  that 
the  homestead-holder  produce  extrinsic  evidence  to  defeat 
the  ejectment  action :  such  as  his  declaration  of  homestead, 
his  occupancy  and  his  family  relation  at  the  time  of  dedica- 
tion. Whatever  creates  the  necessity  for  such  evidence  would 
casta  cloud  upon  his  title  and  give  him  the  right  to  an  injunc- 
tion.' 

Could  not  the  execution  have  been  recalled  by  the  court 
that  issued  it?  And  if  the  homestead -holder  had  failed  to  ask 
this  remedy,  was  he  entitled  to  have  an  injunction?  This 
question  was  raised  in  the  appellate  court,  which  answered 
that  the  court  which  issued  the  execution  would  not  have 
been  bound  to  recall  it  upon  such  application ;  and  that  that 
court  appears  from  the  record  to  have  been  clothed  with  juris- 
diction, and  its  judgment  and  execution  was  binding  upon  the 
defendant's  property  except  what  was  exempt.^  The  issue  of 
the  execution  was  right,  bat  the  levy  upon  the  homestead  was 
wrong:  hence,  injunction  of  that  levy  was  proper. 

Petitioners,  praying  to  enjoin  the  execution  of  a  judgment 
on  a  community  debt  of  an  insolvent  decedent,  may  show  that 
their  title  was  derived  from  a  grantor  who  had  it  from  the 
widow  of  the  decedent  through  a  partition  proceeding  —  not 
from  him  as  heir  of  the  deceased.^ 

Injunction  is  the  proper  remedy  to  prevent  the  illegal  exe- 
cution of  a  homestead.  Though  the  sale  would  be  voidable, 
and  would  be  absolutely  void  where  the  statute  positively 
inhibits  the  forced  sale  of  homesteads  on  judgments  against 
owners  for  ordinary  debts  sub-dating  the  exemption — when 
such  execution  sale  is  in  contravention  of  such  law  —  yet  it 
would  tend  to  obscure  the  title  and  to  breed  litigation.  The 
beneficiary  of  the  homestead  immunity  therefore  needs  relief, 
and  may  find  it  in  equity  by  enjoining  the  sale  to  prevent  the 
casting  of  a  cloud  upon  his  title.*     He  may  also  have  equi- 

'  Id.;  citing  Pixley  v.  Higgins,  15  mains  exempt  in  his  hands  to  auy 

Cal.    127 ;  Culver  v.  Rogers,  28  Cal.  greater  extent  than  $1,000  after  he 

527 ;    Cohen   v.   Sharp,   44    Cal.   29 ;  has    ceased  to    be    the    head    of    a 

Porter  v.  Pico,  55  Cal.  176.  family." 

2  Roth   V.    Insley,   supra.      It  was  *  Watson    v.  Rainy,  69  Tex.   819 ; 

added  by  Beatty,  C.  J. :  "I  think  it  6  S.  W.  840. 

ought  not  to  be  intmiated  that  the  •*  Tucker  v.  Kenniston,  47  N.  H.  267. 
homestead  of  a  head  of  a  family  i-e- 
48 


754  PLEADING   AND   PRACTICE. 

table  remedy  for  the  removal  of  a  cloud  already  overshadow- 
ing his  title.  In '  motion  is  also  the  proper  remedy  to  prevent 
a  purchaser  from  taking  possession  after  such  illegal  sale.'  A 
wife  may  enjoin  the  sheriff  to  prevent  his  selling  the  home- 
stead under  execution.^ 

Sale  may  be  restrnined  by  injunction  if  it  would  throw  a 
cloud  upon  the  title  of  the  jietitioner,  even  though  no  valid 
title  can  pass  by  the  sale  because  of  its  invalidity.'  A  pur- 
chaser may  enjoin  the  levy  of  an  execution  upon  the  home- 
stead of  the  judgment  debtor  which  is  exempt  from  the  lien 
of  judgment  rendered  before  his  purchase,  as  it  would  other- 
wise be  a  cloud  upon  his  title.^  After  purchase,  a  cloud  upon 
the  title  may  be  removed  by  a  bill  in  equity.^ 

The  levy  of  an  execution  was  held  not  dismissible  on  the 
ground  that  the  property  subjected  to  it  was  homestead,  when 
the  jury  had  found  only  the  defendant's  aliquot  part  of  it 
(which  was  not  affected  by  the  homestead)  subject  to  the  exe- 
cution—  not  the  whole  property.^  It  has  been  held  that  the 
creditor's  proceeding  must  be  in  equity,  and  not  by  execution, 
when  liable  property  is  attached  to  a  homestead  and  makes  it 
excessive." 

A  homestead  was  duly  mortgaged,  and  there  was  a  valid 
judgment  recorded  against  it.  The  debtor  sold  the  property, 
the  purchaser  assuming  the  obligation  of  the  judgment,  the 
amount  of  which  was  withheld  by  him  in  making  payment. 
The  purchaser  then  sold  the  property  to  another,  who  had 
notice  of  the  agreement  in  the  first  sale  relative  to  the  judg- 
ment; so  he  was  held  to  have  purchased  subject  to  the  judg- 
ment and  therefore  without  equity  to  enjoin  the  sale  of  the 
property  by  the  judgment  creditor  of  the  original  owner.  He 
could  not  claim  the  benefit  of  exemption.^ 

In  an  injunction  suit  to  restrain  the  trustee  sale  of  a  home- 

1  Harrington  v.  Utterback,  57  Mo.  *  Harrington  v.  Utterback,  57  Mo- 
519.  519. 

2  Bartholomew  v.  Hook,  23  Cal.  278.  6  Vining  v.  Officers,  86  Ga.  127 ;   13 

3  Vogler  V.    Montgomery,   54    Mo.  S.  E.  298 ;  Same  parties,  82  Ga.  222. 
578 ;  Harrington  V.  Utterback,  57  Mo.  ''Vanstory  v.  Thornton,  110  N.  C. 
519.  10 ;  14  S.  E.  637. 

^Ketchin  v.  McCarley,  26  S.  C,  1 ;        « Cumnock    v.   Wilson    (Neb.),    50 
Wilson  V.  Hyatt,  4  S.  C.  369.  (list in-    N.  W.  959. 
guished;  High  on  Injunctions,  §  275. 


SEGREGATION    AND    OTHER    PROCEEDINGS    BEFORE    SALE.        755 

stead  (when  the  property  was  liable  under  a  deed  of  trust) 
because  other  property  of  the  householder  had  not  been  ex- 
hausted as  the  statute  required,  it  was  held  that  he  should 
have  alleged  and  proved  that  he  had  such  other  property  sub- 
ject to  execution,^ 

Sale  under  execution  is  void  if  the  advertisement  by  the 
sheriff  was  fraudulent.  Collusion  by  him  with  the  plaintiff 
in  making  such  advertisement  strikes  the  sale  with  nullity ; 
and  a  purchaser  at  such  sale  is  affected  by  the  guilty  knowl- 
edge of  his  attorney .- 

On  application  to  enjoin  a  sheriff  from  selling  a  homestead, 
a  temporary  injunction  was  granted,  with  refusal  to  pass  upon 
a  dispute  upon  facts  set  forth  in  the  affidavits  of  the  parties 
as  to  whether  the  homestead  property  included  the  upper 
story  of  the  dwelling,^ 

One  who  was  in  the  enjoyment  of  a  homestead,  in  the  coun- 
try, sued  out  an  injunction  to  prevent  the  execution  of  a  judg- 
ment against  his  town  property  which  he  claimed  as  his  "  busi- 
ness homestead."  He  could  not  have  both,  so  the  injunction 
was  dissolved.* 

A  plaintiff  attached  land  of  the  defendant  situated  out  of 
the  county.  Judgment  by  default  was  entered  and  sale  or- 
dered. The  defendant  claimed  the  land  as  his  homestead,  and 
enjoined  the  sale  in  the  county  where  the  land  was  situated. 
He  w^as  held  not  concluded  by  the  judgment.  The  sale  was 
suspended  by  the  injunction  till  the  settlement  of  the  home- 
stead question,  though  the  writ  of  injunction  should  have  been 
returned  to  the  court  whence  the  order  of  sale  had  issued.^^ 
If  the  rights  of  minors  have  not  been  ascertained,  the  deliv- 
ery of  the  homestead  to  a  purchaser  may  be  enjoined.® 

§  21.  Segregation  and  Other  Proceedings  Before  Sale. 

A  rule  by  a  creditor,  as  plaintiff,  for  the  sheriff  to  show 
cause  why  he  should  not  proceed  to  levy  execution  upon  judg- 

1  Stevens  v.  Myers,  11  la.  185.    Sale  -'  JenniDgs  v.  Carter,  53  Ark.  242. 

was  restrained  in  Iowa  because  the  ^  Farley  v.  Hopkins,  79  Cai.  203. 

land  on  which  the  homestead  stood  *  Williams  v.  Wills  (Tex.),  19  S.  W. 

had  not  been  platted  after  its  incor-  683. 

poration  into  the  town  limits,  though  ^geiigson  v.  Collins,  64  Tex.  314. 

it  was  alleged  to  be  in  excess  of  the  ^iColley  v.  Duncan,  47  Ga.  668. 
urban  quantitative  limitation.    Frost 
V.  Rainbow  (la.),  52  N.  W.  198. 


756  PLEADING    AND    PRACTICE. 

ment  obtained,  must  be  discharged  when  it  appears  that  the 
debtor  has  no  property  but  his  homestead  which  is  within  the 
statutory  limit  and  therefore  not  subject  to  tbe  Hen  of  the 
Judgment.^  But  the  officer  is  liable  for  not  selling  liable  prop- 
erty. Upon  refusal  to  proceed,  after  a  claimant,  who  was  not 
the  defendant  in  the  suit,  had  given  notice  that  the  property 
levied  upon  was  his  homestead,  the  sheriff,  upon  sale,  was 
compelled  to  pay  the  value  of  the  land,  or  the  amount  of  the 
judgment.^     Thus  the  officer  stands  between  two  fires. 

If  the  homestead  be  wrongfully'  levied  upon  for  a  debt  for 
which  it  is  not  liable,  an  action  of  trespass  against  the  officer 
and  the  judgment  creditor  will  lie.  There  may  be  choice  be- 
tween that  and  a  statutory  remedy  and  an  action  in  damages 
after  the  illegal  sale  has  been  consummated.'' 

A  part  of  the  realty,  segregated  from  the  rest,  may  be  liable 
to  seizure  and  sale  by  creditors,  though  the  whole  was  the 
debtor's  homestead  before  the  separation,  and  the  major  part 
still  remains  such.^  On  the  other  hand,  the  less  part  may  be 
segregated  from  the  greater,  and  the  greater  be  no  longer 
protected  as  homestead,  while  the  less  continues  exempt.^  If 
there  are  disputes  respecting  land  —  whether  it  is  a  part  of 
the  homestead  —  they  may  be  settled  by  referees  when  there 
is  authorization  to  that  effect.^ 

When  the  property  occupied  by  the  debtor  is  greater  in  ex- 
tent or  value  than  that  which  is  exempt  by  law  as  his  home- 
stead, the  excess  is  liable  to  execution.  It  then  becomes  neces- 
sary to  segregate  the  exempt  from  the  liable  portion,  if  an 
execution  is  pending.  This  is  usually  done  on  application 
(either  of  the  creditor  or  the  debtor)  for  the  court  to  appoint 
appraisers  or  commissioners.     If  by  the  former,  he  must  allege 

1  King  V.  McCarley,  33  S.  C.  264.  6  McC.'s  la.  Code,  §  3177  (2002) ; 
In  South  Carolina,  the  right  of  home-  White  v.  Rowley,  46  la.  680 ;  Mc- 
stead  may  be  determined  by  rule  Cracken  v.  Weitzeli,  70  la.  723.  In 
against  the  sheriff.  Charles  v.  Charles,  Iowa,  the  referees  are  called  jurors  ; 
13  S.  C.  385.  nine  are  summoned,  but  six  are  to  be 

2  Blackraan  v.  Clements,  45  Ga.  292.  struck  off  by  the  parties,  or  by  the 

3  Bartlett  v.  Russell,  41  Ga.  196.  sheriff  when  they  do  not.     The  three 
*  Felner  v.  Bumgarner  (Ark.),  17  S.     remaining  make  their  report  to  the 

W.  709.  court,  which  decides.  McC.'s  la.  Code, 

5  Blackburn  v.  Knight,  81  Tex.  391 ;     §§  3177-3180. 
16  S.  W.  1075 ;  Curtis  v.  Des  Jardins, 
55  Ark.  126. 


SEGREGATION  AND  OTHER  PROCEEDINGS  BEFORE  SALE.   757 

that  he  has  caused  execution  to  be  levied  and  that  the  value 
of  the  property  exceeds  the  homestead  limit ;  and  he  should 
state  who  is  the  claimant  of  the  exemption.  Whether  the  de- 
fendant be  the  claimant,  or  his  wife,  or  any  member  of  the 
family  entitled  to  hold  for  all,  the  name  should  be  stated. 

It  is  rather  the  debtor's  business,  than  the  creditor's,  to 
make  the  application  for  division  when  execution  has  been 
levied  against  an  excessive  homestead.  First  he  may  apply  to 
the  sheriff,  or  other  officer  in  charge  of  the  execution,  to  have 
the  homestead  set  off.  On  the  officer's  compliance,  the  cred- 
itor may  complain  that  too  much  has  been  accorded  to  the 
debtor.  If  so,  the  officer  may  have  the  land  surveyed  to 
ascertain  the  statutory  quantity  exempt.^ 

An  excessive  homestead,  which  is  not  susceptible  of  division, 
may  all  be  retained  by  the  debtor  so  far  as  the  pending  execu- 
tion is  concerned,  if  he  wnll  pay  the  excess  into  court  for  the 
use  of  the  creditor.  This  is  provided  by  statute  in  several 
states;  and  it  is  proper  in  the  absence  of  any  legislative  au- 
thorization; for,  if  the  creditor  gets  out  of  the  debtor  all  that 
he  could  make  out  of  the  property,  justice  is  satisfied.  On  the 
other  hand,  the  creditor  may  pay  the  value  of  the  exempt 
portion  into  court  for  the  use  of  the  debtor,  and  then  go  on 
and  sell  the  whole  of  the  indivisible  property,  under  some  pro- 
visions. 

In  states  where  there  is  no  homestead  selection,  declaration  or 
dedication  of  homestead  by  the  head  of  a  family  irrespective 
of  his  pecuniary  condition ;  and  where  there  is  no  technical 
'homestead  except  the  exemption  allowed  a  debtor  when  exe- 
cution is  pending  (which,  when  consisting  of  realty,  is  some- 
times called  by  the  name),  the  officer,  charged  with  an  execu- 
tion against  the  property  of  a  husband,  is  required,  by  some 
statutes,  to  set  ofif  a  certain  value  of  realt}'  to  the  debtor  when 
application  therefor  has  been  made  by  him.  The  officer,  in 
doing  this,  has  the  aid  of  appraisers  —  one  of  them  selected  by 
the  applicant  —  whose  report  must  be  filed  in  the  case  whence 
the  execution  issued.  A  notary,  or  any  officer  who  is  author- 
ized to  administer  oaths,  may  swear  in  the  appraisers,  as  he 

1  In  Mississippi,  if  a  town   home-    officer  may  sell  a  part  of  it     Rhyne 
stead  is  wortli  more  than  the  statute    v.  Guerara,  67  Miss.  139. 
exempts,  it  has  been  held  that  the 


T58  PLEADING   AND    PEACTICE. 

may  qualify  commissioners  appointed  to  lay  off  homestead 
pursuant  to  a  decree  of  foreclosure.' 

The  appraisers  must  ascertain  the  value ;  and,  if  it  is  in  ex- 
cess of  the  monetary  limit,  they  must  next  decide  whether  the 
property  can  be  divided,  without  injury,  so  that  the  exempt 
portion  may  be  reserved  to  the  debtor  (or  the  claimant,  if 
other  than  the  debtor),  and  the  liable  portion  subjected  to  the 
operation  of  the  writ.  They  must  report  to  the  court ;  but 
the  report  is  not  conclusive.^  If  the  report  favors  division, 
and  is  such  as  the  court  will  adopt  and  act  upon,  the  court 
will  order  the  reservation  of  the  exempt  part  of  the  property 
and  permit  the  execution  to  be  consummated  as  to  the  rest.  If 
the  property  is  reported  to  be  indivisible  and  excessive,  the 
court  will  allow  the  whole  to  be  sold,  and  will  have  the  value 
of  the  homestead  reserved  for  the  claimant  out  of  the  pro- 
ceeds. The  amount  reserved  will  be  exempt  for  such  time  as 
the  statute  provides,  which  varies  in  different  states  from  six 
months  to  two  3=^ears. 

A  sheriff,  who  had  sold  land,  including  homestead,  under 
execution ;  and,  instead  of  paying  over  the  value  of  the  home- 
stead to  the  householder  out  of  the  surplus  proceeds,  had  ap- 
plied them  to  the  satisfaction  of  other  executions  against  him, 
was  held  not  answerable  to  him  when  he  had  stood  by  and 
seen  the  surplus  thus  distributed  without  interposing  objec- 
tion.' 

If  a  homestead,  reported  as  excessive  and  indivisible,  be  of- 
fered at  public  sale  under  the  writ,  and  no  bid  greater  than 
the  monetary  homestead  limit  be  offered,  there  can  be  no  ad- 
judication. 

§  22.  Judgment  and  Costs  an  Entirety. 

As  exemption  is  in  relation  to  debt  in  most  of  the  states, 
and  not  to  other  pecuniary  liabilities,  it  follows  that  judg- 
ments may  be  executed  against  any  property  when  they  are 
not  for  debt.  Dama^'es  recovered  for  other  liabilities  mav  be 
collected  from  it,  and  it  is  held  that  the  costs  of  a  suit  may 

'  Dill  man  v.  Will  County  Bank  3  Brumbaugh  v.  Zollinger,  59  la. 
(111.),  21  N.  E.  1090 ;  Same  title,  36  111.  384 ;  Elliott  v.  Mackorell,  19  S.  C. 
App.  272.  238. 

-Schaeffer    v.    Beldsmeier,  9   Mo. 
App.  438. 


JUDGMENT    AND    COSTS    AN    KNTIRETY. 


751) 


also ;  the  plea  of  exemption  would  not  avail  against  an  execu- 
tion for  costs  in  a  state  which  limits  its  application  to  debt 
"' founded  upon  contract,  ex])ress  or  im[)lied."  '  The  liability 
of  a  plaintiff  or  defendant  for  costs  taxed  against  him  is  not  a 
debt  so  founded,  and  it  cannot  be  said  to  have  grown  out  of 
a  contract,  when  the  judgment  itself  is  not  upon  contract. 
Costs  are  incidental;  and  they  take  the  character  of  the  judg- 
ment when  it  is  for  the  plaintiff.  If  he  is  cast  in  his  suit,  and 
the  defendant  recovers  costs,  what  is  the  rule,  when  there  is  no 
principal  money  judgment  to  give  character  to  the  costs?  It 
is  held,  in  the  case  last  cited  (with  cases  therein  cited),  that 
no  exemption  bars  the  defendant  from  collecting  his  adjudged 
costs  in  an  action  ex  delicto,  and  the  doctrine  is  extended  to 
include  his  costs  in  an  action  ex  contractu. 


1  Donaldson  v.  Banta  (Ind.),  29  N.  E. 
362.  CrumpacktT,  J. :  •'  The  control- 
ling question  in  this  case  is,  does  the 
right  of  exemption  exist  against  an 
execution  issued  upon  a  judgment 
for  costs  in  favor  of  tlie  defendant 
against  an  unsuccessful  plaintiff  in 
an  action  founded  upon  or  growing 
out  of  contract?  If  such  right  ex- 
ists, it  is  conferred  by  section  703, 
Rev.  St  1881,  which  provides  that  an 
amount  of  property  not  exceeding 
$600  in  value  shall  be  exempt  from 
sale  upon  execution  or  other  final 
process  '  for  any  debt  growing  out  of 
or  founded  upon  contract,  express  or 
implied.'  No  exemption  is  allowed 
under  this  statute  unless  the  debt 
under  which  it  is  claimed  was  founded 
upon  or  grew  out  of  a  contract,  ex- 
press or  implied.  The  right  does  not 
exist  against  judgments  in  actions 
for  tort.  Nowling  v.  Mcintosh,  89 
Ind.  593 ;  Thompson  v.  Ross,  87  Ind. 
156 ;  Gently  v.  Purcell,  84  Ind.  83 ; 
Smith  V.  Wood,  83  Ind.  522 ;  Dorrell 
V,  Hannah,  80  Ind.  497.  Where  a 
suitor  obtains  a  judgment  for  dam- 
ages in  an  action  for  tort,  or  a  money 
recovery  in  an  action  upon  contract, 
and  is  awarded  costs,  the  judgment 


is  an  entirety,  and  must  be  collected 
according  to  the  laws  for  the  collec- 
tion of  the  judgment  for  damages  or 
the  money  recovery  upon  contract. 
In  other  words,  the  judgment  for 
costs  is  an  incident  to,  and  must  be 
controlled  in  its  collection  by,  the 
principal  judgment.  This  is  so  even 
where  the  principal  judgment  is  only 
for  a  nominal  amount.  This  was 
decided  in  the  case  of  Church  v.  Hay. 
93  Ind.  323,  wherein  the  court  said : 
'The  costs  recovered  by  the  judg- 
ment plaintiffs  constituted  a  part  of 
the  judgment  on  the  cause  of  action. 
The  judgment  was  an  entirety,  and 
belonged  to  the  judgment  plaintiffs 
upon  the  theory  that  they  had  paid 
them  as  they  accrued  or  are  liable  for 
their  payment;  and  no  contract,  ex- 
press or  implied,  existed  between  the 
judgment  plaintiffs  and  the  judgment 
defendants  in  relation  to  them.  The 
law  requires  them  to  be  paid  by  tbe 
judgment  defendant,  not  because 
they  are  paid  for  his  use,  but  because 
he  had  caused  the  plaintiffs  to  pay 
them  to  protect  their  own  rights.' 
The  doctrine  that  a  judgment  for 
damages  and  costs  is  an  entirety, 
and  the  cost  shall  be  collected  in  the 


760 


PLEADING    AND    PRACTICE. 


In  the  state  of  the  above  cited  case,  where  there  is  ex- 
emption but  no  homestead  law,  a  debtor  was  allowed  exemp- 
tion in  a  ease  brought  against  him  U])on  three  causes  of  ac- 
tion—  two  in  toi't  and  one  on  contract  —  the  court  giving 
him  the  privilege  as  though  the  action  had  been  solely  on  con- 
tract.' Had  the  action  been  wholl}^  in  tort,  no  exemption 
could  have  been  allowed  under  the  statute.'^  If  the  amount 
recovered   on   contract  can  be  s'^gregated  from  that  in  tort? 


same  mauner  as  the  judgment  to 
which  they  are  incidental,  was  de- 
clared in  the  case  of  Martindale  v. 
Tibbetts,  16  Ind.  200.  In  deciding 
the  question  the  court  said :  '  The 
judgment  for  the  debt  and  costs  is  an 
entirety;  the  costs  following  as  an 
incident  to  the  judgment  for  the 
debt,  and  to  be  collected  in  the  same 
manner.'  Where  costs  are  recovered 
independent  of  any  other  judgment, 
they  do  not  constitute  a  debt  founded 
upon  contract.  There  is  no  contract, 
express  or  implied,  that  an  unsuccess- 
ful plaintiff  will  indemnify  the  de- 
fendant for  the  costs  occasioned  by 
the  litig-ition,  but  the  right  to  recover 
costs  is  purely  statutory,  and,  in  the 
absence  of  a  statute  authorizing  it, 
they  could  not  be  recovered  as  such 
by  the  prevailing  party.  Alexander 
V.  Harrison,  2  Ind.  A  pp.  — ,  28  N.  E. 
Rep.  119.  In  an  action  ex  delicto,  if 
the  plaintiff  is  unsuccessful,  and  the 
defendant  recovers  costs,  no  exemp- 
tion is  allowed  against  such  judg- 
ment ;  not  because  the  costs  partake 
of  the  nature  of  the  subject-matter 
of  the  action,  but  because  the  right 
thereto  is  statutory,  and  not  a  matter 
of  contract.  Russell  v.  Cleary,  105 
Ind.  502,  5  N.  E.  Rep.  414.  The  same 
principle  was  applied  in  the  case  of 
State  V.  Mcintosh,  100  Ind.  439, 
wherein  the  court  said :  '  Costs  are 
not  matter  of  contract,  but  they 
are  given  or  withheld  by  statute.' 
Whether  the  right  of  exemption  ex- 


ists against  a  judgment  for  costs 
rendei-ed  against  an  unsuccessful 
plaintiff  in  an  action  founded  upon 
contract  has  never  been  expressly  de- 
cided by  the  supreme  court  in  this 
state,  but  we  can  see  no  good  reason 
for  the  application  of  a  different  rule 
in  such  cases  from  that  applied  to  a 
judgment  under  like  conditions  in  an 
action  for  tort.  Because  in  the  one 
instance  the  suit  is  ex  contractu,  it 
cannot  impart  to  an  independent 
judgment  for  costs  the  qualities  of  a 
contractual  obligation.  The  right  to 
recover  costs  is  conferred  by  the 
very  same  statute  in  both  cases,  and 
must,  upon  the  clearest  principles  of 
jurisprudence,  be  the  same.  It  was 
held  in  Lane  v.  Baker,  2  Grant,  Cas. 
424,  that  costs  do  not  partake  of  the 
nature  of  the  action.  The  court,  by 
Black,  C.  J.,  said  :  '  A  party  is  not  a 
trespasser  because  he  sues  another 
for  trespass.'  We  can  perceive 
ample  I'easous  for  the  rule  requiring 
costs  to  be  collected  by  the  same  law 
as  the  principal  judgment  where" 
they  are  awarded  as  part  of  and  in- 
cidental thereto,  but  these  reason^  do 
not  apply  to  independent  judgments 
for  costs." 

1  Ries  V.  McClatchey,  128  Ind.  125  : 
27  N.  E.  349. 

2  De  Hart  v.  Haun,  126  Ind.  378 ; 
26  N.  E.  61;  Nowling  v.  Mcintosh. 
89  Ind.  598;  Gentry  v.  Purcell,  84 
Ind.  8a 


JUDGMENT    AND    COSTS    AN    ENTIRETY.  761 

when  the  cause  of  action  is  mixed,  the  defendant  may  claim 
exemption  as  to  the  former.'  Ko  exemption  when  the  judg- 
ment is  for  tort  is  a  rule  extensively  folio  wed. ^ 

Wliere  the  statute  exempts  not  only  from  any  debt  con- 
tracted but  also  from  any  liability  contracted,  the  latter  has 
been  held  to  cover  torts,  so  that  the  defendant  had  his  property 
protected  when  execution  followed  a  judgment  against  him  for 
assault  and  battery.''  Not  only  in  actions  for  tort,  but  in  ac- 
tions to  recover  debts  antecedent  to  the  homestead,  the  costs 
partake  of  the  nature  of  the  judgment,  and  may  be  collected 
of  the  homestead.* 

On  a  judgment  for  the  recovery  of  land  and  for  damages 
for  its  wrongful  detention,  the  execution  is  not  for  the  collec- 
tion of  a  debt.  The  sheriff,  when  the  writ  itself  evinces  its 
character,  may  levy  upon  chattels  and  disregard  any  claim  of 
exemption  based  upon  a  law  that  grants  it  only  in  case  of 
"execution  or  other  process  for  the  collection  of  debts."  ^  In 
the  case  cited,  the  court  said :  ''  8uch  exemptions  may  not  be 
claimed  against  process  generally.  A  writ  of  possession  for 
land  and  for  the  collection  of  damages  assessed  for  the  wrong- 
ful detention  thereof,  and  the  costs  of  the  suit,  is  not,  as  to 
the  damages  and  costs,  subject  to  the  claim  of  exemption  of 
personal  property  allowed  by  our  laws,  as  it  is  not  process  for 
the  collection  of  a  debt  contracted ;  and  .  .  .  the  sheriff 
had  a  right  to  .  .  .  sell  the  property  levied  on  as  if  no 
such  claim"  had  been  presented. 

The  executor  of  a  wife's  will,  having  negotiated  the  sale  of 
real  estate  pursuant  to  its  provisions,  petitioned  for  the  con- 
firmation of  the  sale.  Pending  the  hearing,  the  surviving  hus- 
band made  application  to  have  the  property  set  off  to  him  as 
homestead.  To  this  application  the  legatee,  whose  money  be- 
quests were  to  be  paid  out  of  the  proceeds  of  the  sale  accord- 
ing to  the  will,  demurred.     The  demurrer  was  overruled.    Is- 

1  Keller  v.  McMahan,  77  Ind.  62.  Robinson   v.   Wiley,    15    N.   Y.   489. 

2  Stuckey  v.  McGibbon,  93  Ala  622 ;  See  Warner  v.  Cammack,  37  la.  642. 
8  So.  379 ;  Davis  v.  Henson,  29  Ga.  345 ;  » Smith  v.  Omans,  17  Wis.  406. 
Kenyon  v.  Gould,  61  Pa.  292 ;  La-  <  Knight  v.  Whitman,  6  Bush,  51. 
throp  V.  Singer,  39  Barb.  396 ;  Schou-  »  Penton  v.  Diamond,  92  Ala,  610  ; 
ton  V.  Kilmer,  8  How.  (N.  Y.)  527.  9  So.  175 ;  Ala,  Code,  2511 ;  Const 
Contra:  Dellinger  v.  Tweed,  66  N,  C.  Ala.,  art.  10,  §  1. 

206 ;  Conroy  v.  Sullivan,  44  111.  451 ; 


762  PLEADING  AND  PRACTICE. 

sue  was  then  joined :  the  legatees  setting  up  the  will  and  its 
probate  in  defense.  The  husband  was  decreed  to  be  entitled 
to  the  property  for  life,  as  the  surviving  spouse's  homestead, 
but  to  pay  the  expenses  of  the  administration  in  the  absence 
of  any  assets  for  the  purpose.^  Had  he  applied  immediately 
upon  her  death,  the  expenses  might  have  been  avoided. 

It  has  been  held  that  "  costs  on  a  junior  judgment  which 
could  not  be  defeated  by  the  homestead  must  be  postponed 
to  a  senior  judgment  on  a  debt  against  which  a  homestead 
could  be  claimed."  ^ 

1  Lahiff's  Estate,  86  Cal.  151 ;  Cal.    Cal.  385 ;  Maloney  v.  Hefer,  75  CaL 
Civ.  Code,  §  1265 ;  Code  Civ.  Proc.    422,  distinguished. 
1474;   Sulzberger  v.  Sulzberger,  60        2  Bank  v.  Goodman,  33  S.  C.  601. 


CHAPTER  XXIY. 


EXEMPTION  OF  PERSONALTY. 


1.  Diflferentiation    of    Homestead 

and  Chattel  Exemption. 

2.  Interpretation  of  Statutes. 
8.  What  Law  Apphcable. 

4  The  Right  Absolute  or  Condi- 
tional. 
5.  Who  May  Claim. 


§  6.  How  to  Claim. 

7.  When  to  Claim. 

8.  The  Officer's  Duty. 

9.  Limitations. 

10.  Money  in  Lieu  of  Chattels. 

11.  Chattels  in  Lieu  of  Homestead. 

12.  Chattel  Exemption  to  Widows. 


§  1.  Differentiation  of  Homestead  and  Chattel  Exemp- 
tion. 

The  exemption  of  personalty  is  often  called  chattel  exemp- 
tion, and  it  relates  not  only  to  ordinary  movables  but  also  to 
money  and  credits.  It  is  more  general  than  homestead  exemp- 
tion ;  every  state  accords  it,  and  there  is  an  approach  towards 
uniformity  in  the  statutes.  In  some  respects  the  two  kinds 
of  exemption  are  alike ;  in  others,  they  are  different.  Home- 
stead exemption  need  not  have  its  features  here  again  exhib- 
ited ;  but,  as  chattel  exemption  is  portrayed,  the  resemblances 
and  diversities  will  appear.  It  is  a  privilege  granted  to  the 
debtor  when  execution  is  pending  against  his  property.  By 
some  statutes  it  is  granted  to  him  as  a  debtor  simply ;  by 
others,  as  a  debtor  who  is  a  resident  —  a  householder — the 
head  of  a  family ;  by  yet  other  statutes,  as  a  debtor  who  is 
the  follower  of  a  specified  vocation.  The  things  exempt  are 
not  rendered  sacramental  by  any  dedication  or  recordation  so 
as  to  save  them  specially  from  any  forced  sale,  but  are  usually 
selected  with  regard  to  the  pending  execution.  They  mix 
with  the  mass  afterwards,  and  a  second  selection  at  the  time 
of  a  second  execution  may  or  may  not  include  the  same  goods. 
In  other  words,  there  is  no  dedication  in  chattel  exemption. 
If  the  debtor  has  possession  of  the  articles  which  he  claims  as 
exempt,  the  ownership  is  presumed :  so,  in  the  absence  of  evi- 
dence to  the  contrary,  he  need  show  no  title.  Occupancy  — 
ratli'M-  r.hould  we  say  use  —  is  not  essential  to  the  exemption 


764  EXEMPTION    OF    PERSONALTY. 

of  personalty,  except  that  it  may  be  necessary  with  respect  to 
farmers'  and  mechanics'  tools  under  some  statutes.  Family 
headship  is  not  nearly  so  general  a  requirement  as  in  home- 
stead exemption. 

The  policy  of  the  law  is  alike  in  both  classes  of  exemption, 
so  far  as  both  agree;  that  is,  when  both  are  accorded  to  heads 
of  families  only,  the  policy  is  plainly  to  conserve  families. 
When  tools  are  specifically  exempted  in  favor  of  artisans, 
whether  married  or  single,  the  policy  of  the  law  is  evidently 
to  encourage  their  calling.  Such  protection  may  keep  them 
from  being  virtually  maimed  by  havmg  their  artificial  addi- 
tions to  hands  and  feet  cut  off.  When  goods  to  a  given 
amount  are  secured  to  any  debtor,  the  policy  is  more  appar- 
ently beneficent.  In  any  case,  it  is  for  the  welfare  of  the 
state  and  the  good  of  society  and  of  the  beneficiaries. 

§  2.  Interpretation  of  Statutes. 

The  applicable  rules  of  construction  are  the  same  as  those 
appertaining  to  homestead  exemption,  so  far  as  the  purpose 
or  policy  of  the  legislation  is  alike  in  both.  When  a  provis- 
ion is  ambiguous,  it  is  generally  construed  liberally  to  effect 
the  legislator's  intention  to  provide  exemption  in  favor  of  the 
debtor.  Strict  construction  applies  when  there  is  any  deroga- 
tion of  common  right,  and  when  it  would  be  applicable,  for 
any  reason,  under  the  established  rules  of  interpretation  gov- 
erning legislation  on  any  subject.  The  decisions  are  numer- 
ous which  favor  liberal  construction  of  laws  providing  for 
chattel  exemption  —  only  a  few  of  which  need  be  cited.^ 

If  the  privilege  is  granted  on  conditions  to  be  observed  by 
the  applicant,  it  ought  not  to  be  denied  because  he  has  failed 
to  comply  in  some  immaterial  particular  ;2  but  non-compli- 

iRutter  V.  Shumway,  16  Colo.  95;  449;  14  Am.  R.  71;  St.  Louis  Type 

26  R  321  ;  Brown  v.  Balfour,  46  Minn.  Foundry  v.  Publication  Co.,  74  Tex. 

68;  48  N.  W.  604;  State  v.  Boulden,  651;  Allison  v.   Brookshire,  38  Tex. 

57  Md.  318;  Kestler  v.  Kern,  2  Ind.  199;  Byous  v.  Mount,  89  Tenn.  361; 

App.  488 ;  Pickrell  v.  Jerauld,  1  Ind.  Wolfenbarger  v.  Standifer,  3  Sneed, 

App.    10 ;  27  N.   E.   433 ;   Junker  v.  659 ;  Carty  v.  Drew,  46  Vt.  346 ;  See- 

Hustes,  113  Ind.  524;  Butnerv.  Bow-  ley  v.  Gwillim,  40  Ct.  106;  Kuutz  v. 

ser,  104  Ind.  255 ;  Kelley  v.  McFad-  Kinney,  33  Wis.  510. 

den,  80  Ind.  536 ;  Finlen  v.  Howard,  -  Haas   v.   Sbaw,  91    Ind.   384 ;   46 

126  111.  259 ;  Good    v.  Fogg,   61    111.  Am.  R  607. 


INTEEPKETATION    OF    STATUTES.  705 

ance  with  essential  conditions  precedent  on  the  part  of  the 
beneficiary  should  not  be  overlooked.^  When  they  are  set 
forth  ])lainly,  there  is  nothing  for  the  courts  to  construe. 
There  must  be  a  performance  of  the  conditions. 

There  may  be  implications,  either  favoring  the  debtor  or 
otherwise,  which  the  courts  ought  to  regard.  There  may  be 
no  express  words  of  inhibition,  yet  the  spirit  of  the  statute 
may  deny  exemption.  It  was  said  of  an  absconding  debtor: 
"  Refusing  to  remain  within  our  jurisdiction  to  answer  its  lia- 
bilities, he  ought  not  to  be  permitted  to  come  within  it  to  ap- 
propriate its  bounties."  ^  Again  it  was  said :  "  It  cannot  be 
presumed  that  the  legislature  intended  to  extend  the  benefits 
of  the  exemption  laws  to  this  class  of  ])ersons  "  [i.  e.,  abscond- 
ing debtors].^  The  spirit  of  the  legislation,  however,  while 
not  favoring  an  application  from  an  absconded  debtor,  may 
allow  his  wife  or  some  other  member  of  his  family  to  make 
the  claim  in  behalf  of  the  beneficiaries  whom  he  has  deserted.^ 

The  doctrine  of  liberal  construction  has  been  applied  to  the 
rules  of  benevolent  societies  where  the  statute  of  the  state 
exempted  a  benefaction  of  such  a  society  to  a  specified 
amount.^ 

When  an  exemption  provision  is  minutely  incorporated  into 
the  organic  law  of  a  state  it  does  not  become  more  entitled  to 
liberal  interpretation  than  it  would  be  in  a  statute.  It  is  thus 
better  secured,  as  to  permanency,  but  no  better  entitled  to 
favorable  construction.  That  an  exemption  law  is  imbedded  in 
a  constitution  is  no  reason  for  liberal  interpretation,  but  it 
gives  the  beneficiary  a  right  which  the  legislature  cannot  im- 
pair.^ 

Exemptions  from  taxes  are  less  liberally  construed  than 

'Stallings  v.   Read,   94   Ind.    103;  -^By   General   Statutes   of  Minne- 

Smith  V.  Slade,  57  Barb.  641.  sota,  section  369,  a  beneficiary  fund 

^Yelverton  v.  Burton,   26  Pa.  St.  to  the  amount  of  $5,000  is  exempt  to 

351.  the  family  of  the  debtor  free  from 

3  Orr  V.    Box,   23  Minn.   485.     By  his  debts  and  theirs.     Brown  v.  Bal- 

Revised  Statutes  of  Missouri  (1879),  four,  46  Minn.  68 ;  Jewell  v.  Grand 

section  416,  as   construed  in  Burner  Lodge,  41  Minn.  405 ;  Supreme  Coun- 

V.  Kingsbury,  33  Mo.  App.  519.  even  cil  v.  Perry,  140  Mass.  580 ;  Ballou  v. 

wages  may  be  attached  if  the  debtor  Gile,  50  Wis.  614. 

has  absconded.           ,  •*  Ante,  p.  52. 

*  Post,  §  5. 


766  EXEMPTION    OF    PERSONALTY. 

others.  It  was  said  in  a  tax  case  (following  others  that  con- 
tained like  deliverances)  in  a  state  which  treats  all  exemptions 
as  subject  to  strict  construction  as  being  in  derogation  of  com- 
mon right:  "The  well  known  and  universally  prevailing  prin- 
ciple of  interpretation,  that  statutes  comprising  exemptions 
should  be  strictly  construed,  is  specially  emphasized  in  the 
jurisprudence  of  this  state,  '  In  such  case,  doubt  is  fatal.'  "  * 
"  Plausible  hesitation  warrants  an  adverse  finding."  ^ 

In  no  class  of  exemptions  should  statutor}-^  interpretation, 
either  strict  or  liberal,  be  allowed  to  relieve  the  claimant  from 
the  burden  of  making  out  his  case.  In  other  words,  a  case  of 
doubtful  facts  is  not  to  be  helped  or  hindered  by  it.  It  is  not 
for  courts  to  extend  the  statute  to  cover  a  claimant  who  has 
not  brought  himself  under  it.  If  the  facts  show  a  state  of 
things  which  render  it  questionable  whether  the  statute  gives 
exemption  in  such  case,  then  there  must  be  such  interpretation 
as  will  decide  the  question,  not  as  to  the  case  at  bar  merely 
but  as  to  all  like  cases. 

§  3.  What  Law  Applicable. 

The  law  existing  relative  to  exemptions,  at  the  time  of  a 
change  in  the  constitution  on  that  subject,  is  the  one  applicable 
to  questions  arising  thereunder.^  The  constitution  cannot  be 
made  to  increase  the  amount,  without  doing  injustice  to  the 
creditor.  A  legislature  cannot  enlarge  it,  wnth  reference  to 
the  existing  obligations  of  the  debtor.  If  he  acquired  the 
property  he  claims,  after  the  new  enactment,  his  position  is 
not  better,  since  the  date  of  the  debt  fixes  the  exemption 
right,  and  points  to  the  statute  then  existing.  For  illustra- 
tion :  a  statute  exempted  one  horse ;  a  later  statute  exempted 
two;  the  debt  was  contracted  under  the  first  one:  lidd^  that 
the  first  law  governed,  and  the  defendant  could  not  claim  two.* 

1  Gast  V.  Board  of  Assessors,  43  La.  Chalmers,  J.,  for  the  court,  put  the 
Ann.  1105.  decision   on  the  ground  that  to  ex- 

2  City  of  New  Orleans  v.  Eobira,  42  empt  more  than  what  the  creditor 
La.  Ann.  1 102.  Like  renderings  and  knew  to  be  exempt,  when  he  trusted 
expressions  in  Carre  v.  City,  41  La  the  debtor,  would  be  to  impair  the 
Ann.  998  and  42  id.  1121 ;  Dennis  v.  contract,  citing  Lessley  v  Phipps,  49 
Railroad  Co.,  34  La,  Ann.  958.  Miss.  790;  Gunn  v.   Barry,  15  Wall. 

3  Moore  v.  Boozier,  42  Ark.  385.  610 ;  Homestead  Cases,  22  Gratt.  266. 
<  Johnson  v.  Fletcher,  54  Miss.  628.     He  argued  that,  to  poor   people,  thfr 


WHAT    LAW    APPLICABLE.  767 

Under  a  statute  which  made  certain  absolute  exemptions,  and 
certain  ones  subject  to  selection  and  claim,  the  same  principle, 
as  to  the  governing  statute,  was  clearly  elucidated." 

A  bankrupt,  who  gave  a  note  subsecpicntly  to  his  discharge 
for  the  discharged  debt,  when  sued  upon  the  note,  was  al- 
lowed to  claim  his  exemption  of  six  hundred  dolhirs  under  the 
statute  exempting  that  amount  from  execution  for  "  any  debt 
growing  out  of,  or  founded  upon,  a  contract  expressed  or  im- 
plied."- In  so  allowing,  the  court  said  that  the  debtor's  dis- 
charge in  bankruptcy  did  not  pay  his  debt  but  left  him  morally 
bound  to  pay  it  if  able  to  do  so  at  some  future  time;  that  this 
moral  obligation  constituted  a  sufficient  consideration  for  the 
note ;  that  the  new  note  revived  the  original  debt.*  But  the  re- 
pealed laws  governing  the  original  debt  were  not  also  revived; 
the  rights  and  remedies  of  the  parties,  respecting  the  new 
note,  must  be  governed  by  the  laws  in  force  when  the  remedy 
is  sought.^  This  is  the  general  rule  as  to  contracts,  and  it  is 
applicable  to  both  classes  of  exemptions.' 

A  statute  of  limitation  should  not  too  suddenly  cut  off  rem- 
edy.* 

The  contract  is  governed  by  the  statute  in  force  when  it  was 
made.''  The  repeal  of  the  statute  does  not  affect  the  contract.^ 
The  remedy  may  be  altered  if  the  contract  is  not  thereby  im- 
paired.^    But  there  is  impairment  if  the  object  of  the  contract 

increase  from  one  horse  to  two  is  as  Billings  v.  Hall,  7  Cal.  1 ;  Bumgard- 

great  a  change  as  the  increase  of  ner  v.  Circuit  Court.  4  Mo.  50 ;  But- 

homestead  exemption  from  an  eighth  ler  v.  Pennsylvania,  10  How.  (U.  S.) 

to  a  quarter  section  would  be  to  men  416 ;  Bronson  v.  Newberry,  2  Doug, 

of  means.      The  case  allowing  the  (Mich.)  38;    Billmeyer  v.  Evans.  40 

latter,  Stephenson  v.  Osbore,  41  Miss,  Pa.  St  324 ;  Coriell  v.  Ham,  4  Greene 

119,   was    overruled    in   Lessley    v.  (la.),  458. 

Phipps,  supra,  as  the  court  showed.  ^  Call  v.  Hagger,  8  Mass.  423. 

1  Carlton  v.  Watts,  82  N.   C.  212;  ^  Ante,  p.  19;  Cornell  v.  Kitchens, 

Gamble  v.  Rhyne,  80  N.  C.  183 ;  Earle  11  Wis.  368 ;  Coosa  River  Steamboat 

V.  Hardie,  80  N.  C.  177.  Co.  v.  Barclay,  30  Ala.  120. 

2Ind.  Rev.  Stat.  (1881),  §  703.  8  Commonwealth  v.  New  Bedford 

3  Willis  v.  Cushman,  115  Ind.  100,  Bridge,  2  Gray,  339;  Conant  v.  Van 

105;  citing  Carey  v.  Hess,    112  Ind.  Schaick,  24  Barb.  87 ;  Cook  v.  Moffat, 

398.  5  How.  (U.  S.)  316 ;  Atwater  v.  Wood- 

*Ib.;  citing  Davis  v.  Rupe,  114  Ind.  bridge,  6  Ct.  223. 

588,  9  Garrett  v.  Beaumont,  24  Miss.  337  ; 

sAuld    V.    Butcher,   2    Kas.    155;  Cox  v.  Berry,  13  Ga.  306;  Griffin  v. 

Berthold  v.   Holman,  12  Minn.  335 ;  McKenzie,  7  Ga.  163 ;  Cutts  v.  Hardee, 


768  EXEMPTION    OF    PEK80NALTY. 

is  defeated  by  the  change  in  the  statute.'  The  logic  is  the 
same,  as  to  impairment,  whether  personalty  or  realty  be  ex- 
empted ;  but  the  rigorous  test,  prescribed  in  some  decisions,^ 
would  work  hardship  in  many  cases  involving  small  chattel 
exemptions.  The  creditor  is  doubtless  entitled  to  notice  of 
exemption  before  giving  credit,  as  a  general  rule ;  that  is,  he 
should  have  the  advisement  which  the  passage  of  an  exemp- 
tion law^  gives  him  before  he  trusts  his  debtor  on  account  of 
the  latter's  chattel  means  of  payment.  Where  the  law  gives 
large  exemptions  to  the  debtor  —  a  thousand  dollars'  worth 
of  personalty  or  more  —  there  is  no  good  reason  why  the  rule 
of  notice  should  not  be  applied ;  but  the  usual  and  almost 
universally  authorized  exemptions  of  bed  and  bedding  to  fam- 
ilies, tools  to  artisans,  and  the  like,  ought  not  to  be  subjected 
to  the  test  so  strictly  as  to  make  them  dependent  upon  their 
antedating  the  debt,  prior  notice  to  creditors  and  other  par- 
ticulars. For  creditors  and  the  public  may  be  presumed  to 
know"  that  such  exemptions  are  usual  everywhere ;  and  it  may 
be  said  that  contracts  are  made  with  knowledge  of  this  fact. 
Such  exemptions  are  allowed  throughout  the  civilized  world, 
and  there  were  exemptions  of  necessary  articles  even  among 
the  ancients.  There  was  statutory  exemption  of  agricultural 
implements,  wearing  apparel  and  some  other  necessary  arti- 
cles, over  five  hundred  years  ago  in  England ;  and  there  has 
been  similar  provision  in  this  country  through  all  its  history. 

§  4.  The  Right  Absolute  or  Conditional. 

Exemption  is  ahsolftte  or  conditional.  It  relates  to  property 
specific  or  selectaMe:  the  former  being  exempt  while  the  latter 
is  exemptible.  The  absolute  exemption  of  specific  things  is 
made  complete  by  statute,  while  the  conditional  exemption  of 
things  selectible  leaves  something  for  the  beneficiary  to  do. 
The  condition  is  that  he  must  claim  his  privilege  by  compli- 

38  Ga  350 ;  Coach  v.  McKee,  6  Ark.  pike  Co.  v.  How,  14  B.  Mon.  342 ; 
484;  Walker  v.  Bank,  7  Ark.  484;  Damman  v.  Com.  School  Lands,  4 
Waltermire  v.  Westover,  14  N.  Y.  16 ;  Wis.  [*414],  432 ;  Grogan  v.  San  Fran- 
Morse  V.  Goold,  11  N.  Y.  281.  cisco,  18  Cal.  590;  Montgomery  v. 
iCurran V.Arkansas,  15 How. (U.S.)  Casson,  16  Cal.  189;  McCauley  v. 
304.  See  generally,  as  to  statutes  im-  Brooks,  16  Cal.  11.  See  Charles  River 
pairing  contract:  King  v.  Dedham  Bridge  Case,  11  Pet.  538. 
Bank,  15  Mass.  447 ;  Maysville  Turn-  -  Ante,  pp.  677-9. 


THE    RIGHT    ABSOLUTE    OR   CONDITIONAL.  769 

ance  with  the  statute.  When  execution  is  pending,  he  must 
file  his  schedule,  select  and  })oint  out  the  chattels  wliich  he  is 
allowed  to  save  from  the  sale,  and  claim  his  ])rivilege  in  the 
mode  and  within  the  time  prescribed  by  the  statute. 

Specific  property,  absolutely  exempt,  may  be  mortgaged, 
assigned,  sold,  or  subjected  to  any  disposition  by  the  debtor 
without  injury  or  loss  to  his  creditor  who  has  no  right  to  look 
to  it  for  satisfaction ;  but  property  is  not  thus  at  the  debtor's 
disposal  when  it  is  merely  exemptible  upon  compliance  with 
conditions.  When  there  is  no  absolute  exemption,  all  the  debt- 
or's property  is  liable  under  a  general  judgment,  and  any  of 
it  may  be  seized  in  execution.  The  officer  does  not  know 
that  the  defendant  will  avail  himself  of  the  privilege  of  select- 
ing and  claiming  anything  under  the  statute  which  merely 
accords  the  right.  He  is  not  bound,  or  even  permitted,  to  set 
off  any  unclaimed  chattels  to  the  notified  debtor,  under  such 
circumstances,  but  must  levy  upon  that  which  the  plaintiff 
points  out,  or  on  what  he  finds,  if  nothing  be  pointed  out; 
and  he  must  go  on  and  sell,  if  no  claim  of  exemption  inter- 
venes before  the  sale. 

While  the  debtor  may  dispose  of  specific  property  abso- 
lutely exempt,  he  cannot  convey  that  which  is  merely  suscep- 
tible of  being  made  exempt  without  forfeiting  his  right  to 
claim.  He  cannot  transfer  to  another  this  right.  A  debtor's 
interest  in  a  fund  was  assigned  by  him  to  his  children  after 
proceedings  had  been  instituted  to  subject  it  to  the  satisfac- 
tion of  his  debt.  Then  he  claimed  exemption  in  behalf  of  his 
children.  He  was  held  incompetent  to  claim,  in  an  able  opin- 
ion which  makes  the  distinction  between  exempt  and  exem.pP 
ihle  property  very  lucid.^ 

1  Stotesbuvy    v.   Kirtland,   35  Mo.  the  vendee,   in    the    sense  that  hia 

App.  148.  vendee  may,  as  against  his  creditora 

Judge  Thompson  said  for  the  court:  set  up  his  right  of  exemption;  as  is 

"  The  distinction  which  our  courts  shown  by  Stone  v.  Spencer,  77  Ma 

take  between  these  two  sections  (Mo.  356,  and  as  is  recognized  in  Hombs  v. 

R  S.,  ^g  2343,  2346)  is  that  the  specific  Corbin,  20  Mo.  App.  507.    But,  as  held 

chattels  exempt  under  the  first  sec-  in  this  last  named  case,  this  is  true 

tion  are  exempt  whether  selected  or  only  of  property  which  is  tluis  spe- 

not;  and  consequently,  if  the  debtor  cifically  made  exempt,  and  is  not  true 

sells   them,  the  right  of  exemption  of  property  which  the  debtor  may 

will  attach  to  them  in  the  hands  of  select,  under  section  2346,  in  lieu  of 

49 


770 


EXEMPTION    OF    PERSONALTY. 


§  5.  Who  May  Claim. 

Possessor:  The  claiming  of  exeinptible  personalty,  by  house- 
holders, to  save  it  from  execution,  will  now  be  considered. 
The  defendant  is  the  proper  claimant  of  property  in  which  he 
has  the  exemption  right.  It  is  levied  upon  as  his  property,  or 
about  to  be,  and  he  seeks  to  defeat  the  levy,  or  to  prevent  its 
being  made,  because  he  is  interested  as  owner.  But  it  is  not 
essential  that  he  have  title  of  any  sort,  beyond  possession,  to 
enable  him  to  set  up  the  exemption  privilege.  He  is  not 
bound  to  show  title  as  against  the  creditor  and  officer  who 
have  just  seized  the  goods  as  his  property.  It  is  even  held 
that  exempt  movables,  owned  by  the  debtor's  wife  but  seized 


the  specified  property  exempt  under 
the  section  previously  cited.  The 
reason  given  by  the  court  for  this 
conclusion  was  thus  stated  by  Judge 
Hall :  '  As  to  the  right  of  selection, 
this  is  purely  a  personal  privilege 
conferred  upon  the  debtor,  vs'hich  he 
alone  can  exercise  and  which  he  can- 
not transfer  to  another.  Exempt 
property  the  debtor  can  sell,  and  it 
remains  exempt  after  the  sale,  as  it 
was  before,  vmaffected  thereby.  Or, 
if  the  property  be  not  exempt,  the 
debtor  may  select  it  in  lieu  of  that 
which  is  exempt,  and,  after  the  selec- 
tion, sell  it,  as  he  may  sell  the  ex- 
empt property.  Bufc  the  right  to 
make  the  selection  the  debtor  can- 
not sell :  he  alone  can  exercise  it. 
As  the  debtor  can  alone  make  such 
selection,  he  alone  can  avoid  a  levy 
on  account  of  a  failure  of  the  olficer 
to  give  him  an  opportunity  to  make 
it  The  right  to  make  the  selection 
the  debtor  may  waive,  just  as  he 
may  waive  his  right  to  all  exemp- 
tions.'    Hombs  V.  Corbin,  supra. 

"The  question  is  thrown  into 
clearer  light  by  the  decision  of  this 
court  in  Alt  v.  Lafayette  Bank,  9  Mo. 
App,  91.  That  case  affords  a  distinct 
authority  for  the  decision  of  the  case 
before  us  against  the  claim  of  exemp- 
tion set  up  b}'  the  defendants.     It 


had  previously  been  held  by  this 
court  in  Kulage  v,  Schueler,  7  Mo. 
App.  250,  that  there  can  be  no  fraudu- 
lent conveyance  of  property  which 
has  already  acquired  the  status  of 
being  exempt  from  execution.  In 
the  later  case  of  Alt  v.  Lafayette 
Bank,  it  was  held  that  where  prop- 
erty has  not  acquired  the  status  of 
exempt  property  at  the  time  when  it 
is  conveyed  in  fraud  of  creditors,  a 
right  of  exemption  in  respect  of  it 
cannot  afterwards  be  claimed.  .  .  . 
In  Ihe  present  case,  it  was  earnestly 
argued  that,  until  the  time  came  to 
file  his  answer,  the  debtor  had  been 
afforded  no  opportunity  of  setting  up 
his  claim,  .  .  ,  We  apprehend  that 
this  view  is  not  tenable.  ,  ,  .  He 
might  have  claimed  as  was  done  by 
an  insolvent  debtor,  in  the  case  of 
Weinrich  v.  Koelling,  21  Mo.  App, 
133-5.  He  should  have  set  up  his 
right  of  exemption  first,  in  his  an- 
swer to  the  petition,  and  then  we 
think  he  might  have  conveyed  his 
interest  in  the  fund,  to  the  extent  of 
his  exemption,  to  his  children.  .  ,  . 
"The  right  of  exemption,  as  we 
have  seen,  cannot,  except  in  the  case 
of  specific  chattels,  be  asserted  by 
any  one  save  the  debtor  himself,  as 
was  said  by  the  supreme  court  in 
Osborne  v,  Schutt,  67  Mo,  714." 


WHO    MAY    CLAIM.  771 

for  his  debts  and  adjudged  liable  therefor,  may  yet  be  rescued 
by  liim  from  the  grasp  of  his  creditors.  And  this,  too,  after 
he  has  denied  ownership  and  declared  it  to  be  in  his  wife.' 
But  the  bailee  of  the  beneficiary  of  exemption  cannot  be  heard 
to  claim  the  exemption  in  behalf  of  the  beneficiary.^  And  as 
the  claim  should  be  by  the  debtor  himself  (though  other  bene- 
ficiaries, such  as  a  wife  and  it  may  be  other  members  of  his 
family,  may  act  in  his  absence  or  upon  his  neglect),  he  cannot 
appoint  an  agent  to  claim  for  him  when  there  is  no  reason  or 
necessity  for  doing  so.  He  cannot  transfer  his  claiming  right 
to  a  vendee  so  as  to  enable  the  latter  to  claim  the  exemption 
of  the  article  bought  on  grounds  personal  to  the  vendor.' 

Family  head:  The  claimant  who  relies  upon  a  statute  giving 
exemption  to  the  head  of  a  family  dependent  upon  him  and 
living  with  him  as  members  of  his  household  must  prove  that 
he  occupies  that  position,  when  the  fact  is  drawn  in  question.'' 

The  husband's  headship  of  the  family,  when  his  wife  and 
children  compose  the  household,  though  always  presumed 
when  the  fact  of  family  existence  has  been  established,  may 
be  disproved,  and  the  wife  show^n  to  occupy  that  position,  it 
has  been  decided ;  and,  when  she  takes  charge  of  the  duties 
usually  appertaining  to  him,  that  fact  may  be  proved;  and 
the  court  will  recognize  her  as  entitled  to  claim  exemption  in 
his  stead,  it  is  further  held.'^  "  Ordinarily,  at  least,  where  the 
wife  lives  with  the  husband,  he  must  be  regarded  as  the  head 
of  the  family.  If,  in  fact,  he  has  not  control  of  the  family 
and  is  not  the  head  thereof,  such  fact  must  be  shown  by 
proof." "  When,  by  reason  of  continued  sickness,  or  disability 
of  any  kind,  he  has  habitually  intrusted  his  business  matters  to 
his  wife,  she  may  claim  the  statutory  exemption.'' 

iSteen  v,  Hamblet,  66  Miss.   112;  153;  Woodward  v.  Murray,  18  Johns. 

King  V.  Sturges,  56  Miss.  606;  Mc-  400;  Griffin  v.  Sutlierland,  14  Barb. 

Grath  v.  Sinclair,  55  Miss.  89.     See  456 ;  Pollard  v.  Thomason.  5  Humph. 

Chamberlain  V.  Darrow,  46  Hun,  48.  56;  Gunn  v.   Gudehus,  15   B.   Mon. 

Contra:  Huey's  Appeal,   29  Pa.   St  447.   In  a  homestead  case,  a  widower 

219 ;  Miles  v.  The  State  (Md.),  21  A.  was  held  to  be  a  family.  In  re  Lamb's 

5L  Estate  (Cal.),  30  P.  508;  ante,  p.  85. 

■  ^Mickles  v.  Tousley,  1  Cow.  114.  » Temple  v.  Freed,  21  111.  App.  238. 

SHowland  v.  Fuller,  8  Minn.  30.  ^Ih;  Clinton  v.  Kid  well,  82  III.  429. 

^Boykin  v,  Edwards,  21  Ala.  261 ;  "Sfcite  v.  Houck  (Neb.),  49  N.  W. 

BonneU  v.  Dunn  (4  Dutch.X  28  N.  J.  L.  4C3. 


772 


EXEMPTION    OF    PERSONALTY. 


The  husband  who  lives  apart  from  his  family  and  does  not 
contribute  to  their  support  may  be  considered  as  having  abdi- 
cated his  authority  and  headship,  and  to  have  lost  his  right  to 
claim  chattel  exemption  as  head  of  the  family.^  So  also  a 
divorced  husband  who  is  childless.'^  But  when  the  husband 
had  children,  he  was  allowed  such  exemption,  though  not  liv- 
ing with  his  wife.^  Even  when  he  has  been  divorced  at  the 
suit  of  his  wife,  he  has  been  allowed  to  claim  exemption,  in 


1  Linton  v.  Crosby,  56  la.  386 ;  41 
Am.  Rep.  107. 

2SpangIer  v.  Kaufman,  43  Mo. 
App.  5,  distinguishing  Whitehead  v. 
Tapp,  69  Mo.  415,  and  Brown  v. 
Brown,  68  Mo.  388. 

3  Rogers  v.  Fox  (Tex.),  16  S.  W.  781. 
Hurt,  J. :  "  Appellee,  Fox,  sued  ap- 
pellant upon  an  open  account,  and 
caused  a  writ  of  attachment  to  be  is- 
sued, and  levied  upon  a  horse  and 
wagon.  In  the  justice  court  Fox  re- 
covered a  judgment  for  the  sum  of 
$22.60,  with  a  foreclosure  of  the  at- 
tachment lien  upon  the  horse,  the 
justice  holding  that  the  wagon  was 
exempt  Rogers  appealed  to  the 
county  court,  and  in  that  court  Fox 
had  a  judgment  for  the  sum  of 
$21.94,  with  foreclosure  of  the  lien 
on  both  horse  and  wagon,  and  from 
that  judgment  Rogers  appeals  to  this 
court.  Rogers  claimed  that  the  horse 
and  wagon  levied  on  were  exempt 
property,  for  the  reason  that  he  was 
a  married  man  and  head  of  a  family. 
The  agreed  statement  of  the  facts 
shows  that  Rogers  is  a  married  man, 
having  married  in  Tennessee  about 
twelve  years  ago,  and  that  he  has  a 
wife  and  five  children  living  in  Mon- 
tague county,  Texas.  He  has  not 
been  living  with  his  wife  since  Janu- 
ary, 1887,  but  is  not  divorced.  He 
has  not  contributed  anything  to  her 
support  since  January,  1887.  Rogers 
is  a  resident  citizen  of  Cooke  county. 
The  writ  was  levied  in  January,  1888. 


The  court  charged  the  jury  to  find  in 
favor  of  Rogers  on  his  claim  that  the 
property  was  exempt  if  he  'was  a 
married  man  with  a  family  depend- 
ent upon  him,  and  that  he  was  a 
consistent  part  of  said  family,'  etc. 
We  are  of  the  opinion  that  the  court 
erred  in  this  charge,  and  that  the 
charge  requested  by  appellant  should 
have  been  given,  that  he  was  entitled 
to  recover  on  his  plea  that  he  was  a 
married  man  and  the  head  of  a  fam- 
ily. We  see  nothing  in  the  agreed 
facts  in  this  case  to  warrant  any 
further  qualification  of  his  right  to 
have  the  law  protect  his  exemption. 
As  will  be  seen,  the  j  j  ment  in  the 
justice  court  is  for  .$22.60,  and  that 
in  the  covmty  court  was  for  $21.94. 
The  court  taxed  the  costs  of  the 
county  court  against  defendant.  This 
was  error.  Art.  1432,  Rev.  St  The 
statute  gave  defendant  his  costs  in 
the  county  court,  as  the  judgment 
there  recovered  against  him  was  for 
less  than  the  judgment  in  the  justice 
court  It  is  true  that  the  court  is  au- 
thorized, for  good  cause  stated  in  the 
record,  to  adjudge  the  costs  other- 
wise, but  none  appears  here.  There 
is  found  in  the  record  what  appears 
to  be  sworn  statements  of  jurors  who 
tried  the  case  that  they  intended  to 
give  the  plaintiff  a  larger  verdict 
This  cannot  serve  a  good  cause  or 
any  other  purposa  Reversed  and 
remanded." 


WHO   MAY    CLAIM.  773 

the  capacity  of  head  of  a  family,  because  he  still  continued 
to  support  his  children.^  He  would  then  have  as  good  a  claim 
as  an  unmarried  man  who  supports  his  mother.^  It  was  held 
under  a  statute  allowing  six  hundred  dollars  to  every  resident 
householder,  that  a  debtor  who  was  unmarried  when  his  proj)- 
erty  was  levied  upon,  but  who  took  a  wife  and  went  to  house- 
keeping before  the  sale  was  consummated,  was  entitled  to 
claim  exemption.^  The  court  said:  "The  debtor  is  entitled 
to  select  the  propei  ty  he  desires  to  exempt  from  execution 
and  sale,  and  he  may  file  his  schedule  and  make  such  selection 
at  any  time  before  sale.  ,  .  .  The  contention  of  the  ap- 
pellants, that  because  the  levy  in  this  case  satisfied  the  exe- 
cution they  are  therefore  entitled  to  sell  the  property,  cannot 
be  maintained."  Many  authorities  were  collected,  pro  and  con^ 
on  the  question  of  the  debtor's  defeat  of  the  execution  by  his 
marriage,  but  the  court  found  the  solution  in  construing  the 
statute  of  its  own  state.  "  An  examination  of  these  authori- 
ties will  reveal  the  fact  that  the  question  always  depends  upon 
the  construction  to  be  given  to  the  numerous  statutes  upon 
the  subject  of  exemption,  all  in  some  respects  differing." 
Doubtless  this  observation  of  the  court  could  be  profitably 
applied  to  many  questions  on  which  reconciliation  of  decisions 
is  otherwise  impossible. 

A  husband  having  absconded,  and  his  personal  property 
having  been  attached,  his  wife  claimed  four  hundred  dollars' 
worth  of  it  as  exempt.  The  property  was  appraised,  and  the 
portion  awarded  to  her,  though  it  proved  afterwards  to  be 
worth  a  thousand  dollars  at  auctioneer's  sale ;  and  the  auc- 
tioneer was  garnished  for  the  money.  The  court  said  there 
was  no  statutory  warrant  for  placing  the  limit  of  four  hun- 
dred dollars  upon  the  property  which  a  wife  ordinarily  may 
claim ;  that  "  no  right  of  substitution  seems  to  be  given  to  the 
wife,  under  a  literal  reading  of  the  statute,  except  to  the  ex- 
tent of  three  hundred  dollars ;  but  judicial  construction  and 
usage  [?]  seem  to  have  placed  it  at  four  hundred  dollars, 
including  one  hundred  dollars  given  in  lieu  of  the  article  men- 

1  Roberts  v.  Moudy,  30  Neb.  683;  46  State  v.  Read,  94  Ind.  103;  Eltsrotli 
N.  W.  1013.  V.    Webster,    15    lud.    21 ;    Pate    v. 

2  State  V.  Kane,  42  Mo.  App.  253.  Swann,  7  Blackf.  500. 

3  Robinson  v.  Hughes,  117  Ind.  293 ; 


774  EXEMPTION    OF    PERSONALTY. 

tioned  in  subdivision  6  of  section  2343."  ^  But  the  title  to 
the  property  claimed  by  the  wife,  under  the  circumstances, 
did  not  vest  in  her.  She  acquired  only  the  right  of  posses- 
sion in  behalf  of  the  family.  The  exempt  chattels  having 
been  converted  into  money,  the  garnishment  was  sustained.'^ 

There  being  no  realty,  and  the  husband  having  absconded, 
personalty  may  be  claimed  by  the  wife,  in  lieu  of  homestead : 
she  acting  as  the  head  of  the  family."' 

When  a  childless,  deserted  wife  had  sold  four  hundred  dol- 
lars' worth  of  her  husband's  property,  which  was  afterwards 
seized  for  his  debts  —  and  when  she  took  it  back  after  the 
levy  —  she  was  awarded  the  exemption  as  though  at  the  head 
of  a  family.* 

Resident:  Where  exemption  was  a  privilege  accorded  only 
to  residents,  a  question  arose  whether  a  claimant  who  had 
domicile  where  he  claimed,  but  who  was  living  in  another 
state,  was  entitled?  The  court,  because  the  law  conferring 
the  privilege  was  remedial  and  to  be  liberally  construed,  al- 
lowed the  claim.  And  it  should  be  added  that  the  absence 
was  considered  temporary.^  Domicile,  without  actual  resi- 
dency, has  been  held  insufficient.^  Where  the  absence  was 
probably  permanent,  the  wife  of  the  absentee  was  allowed  to 
claim  household  goods,  she  being  deemed  the  head  of  the 
family  under  the  circumstances.  She  had  averred  herself  to 
be  such  head,  and  a  resident  and  not  a  homestead-holder,  thus 
brinffins-  herself  within  the  list  of  those  entitled  to  claim.  The 
court  recognized  her  right,  and  said  that  "  to  hold  that  by 
the  departure  of  the  husband  the  family  would  be  deprived 
of  the  right  to  hold  such  property,  would  in  effect  destroy 
the  beneficent  purpose  of  the  exemption  laws."  '  But  an  in- 
tention to  leave  the  state,  suspension  of  business,  and  the 
taking  of  machinery  (claimed  as  exempt)  to  a  railroad  station 

1  Steele  v.  Leonori,  28  Mo.  App.  6  Munds  v.  Cassidey,  98  N.  C.  558. 
675,  682;  citing  Mahan  v.  Scruggs,  29    See  Post  v.  Bird  (Fla.),  9  So.  888. 

Mo.  283;  State  v.  Kurtzeborn,  2  Mo.  'Hamilton  v.  Fleming,  26  Neb.  240, 

App.  337.  citing  Frazier  v.  Syas,  10  Neb.   115. 

2  lb.  See  Schaller  v,  Kurtz,  25  Neb.  655 ; 

3  State  V.  Wilson,  31  Neb.  462 :  48  State  v.  Wilson,  31  Neb.  462 ;  48 
N.  W.  147.  N.  W.  147 ;  Freehling  v.  Bresnahau, 

4  Berry  v.  Hanks,  28  111.  App.  51.        61  Mich.  540. 
s  Birdsong  v.  Tuttle,  52  Ark.  91. 


M'HO    MAY    CLAIM.  776 

for  shipment  to  a  place  beyond  the  state,  do  not  make  the 
debtor  a  non-resident  or  affect  his  exemption  privilege.' 

When  exemption  is  confined  to  residents,  an  applicant  must 
allege  himself  to  be  such,  and  he  must  prove  it  unless  relieved 
by  presumption.-  It  has  been  held  in  some  states  that  the 
residency  need  not  be  permanent,''  while  in  others  the  de- 
cisions have  been  otherwise.*  It  must  be  actual  —  not  con- 
structive.* 

Alienation  or  abandonment:  When  a  husband  has  legally 
sold  or  mortgaged  his  exempt  personal  property,  such  as  a 
stock  of  goods,  to  enable  himself  to  carry  on  his  business,  his 
wife  cannot  interfere,  or  subsequently  claim  that  property. 
If  attached,  or  levied  upon  under  execution,  and  the  husband 
releases  his  exemption  right  where  he  alone  may  legally  do 
so,  the  wife  cannot  set  it  up.^ 

Can  one  claim  after  an  abortive  attempt  to  convey?  A 
debtor  gave  his  wife  a  bill  of  sale,  and  notified  the  seizing 
officer  of  the  fact  when  submitting  his  schedule.  As  the  bill 
proved  defective,  the  court  required  the  officer  to  hold  the 
conveyed  property.  The  debtor  could  yet  make  his  selection 
from  that  property  —  the  court  holding  that,  though  the  title 
had  passed  from  hira  to  his  wife  "  as  between  themselves,"  it 
had  not,  "  as  against  the  rights  and  interests  of  third  per- 
sons." Creditors,  therefore,  could  look  to  the  property  if  not 
claimed  as  exempt  by  the  debtor.^ 

If  property  has  been  abandoned  by  the  husband,  it  is 
held  that  the  wife  cannot  claim  exemption.**  This  may  be 
modified  by  circumstances.  If  the  household  goods,  necessary 
to  the  family  life,  be  wantonly  abandoned  by  the  husband, 
the  spirit  of  many  statutes  would  allow  her  to  interpose  a 
claim  in  behalf  of  herself  and  her  children. 

Artisans  and  debtors  wit! tout  families:  This  section  does  not 
include  all  classes  who  may  claim  exemption.     Mechanics  and 

1  Wood  T.  Bresnahau,  63  Mich.  614,        *  Hawkins   v.  Pearce.   11    Humph. 
distinguishing  McHugh  v.  Curtis,  48    44 ;  Fiuley  v.  Sly,  44  Ind.  266. 
Mich.  263.  a  Bramble  v.  State,  41  Md.  435,  44 1. 

2  McKenzie  v.  Murphy,  24  Ark.  Ii55.         6  Charpentier  v.  BresDalian,62  Mich, 
s  Abercroinbie  v.  Alderson,  9  Ala,     360:  Howell's  Stat.  §  7686,  par.  8,  9. 

981;  Lowe  v.  Striugham,  14  Wis.  ^Houk  v.  Newman,  26111.  App.  23a 
[*222],  241;  Hill  v.  Loomis.  6  N.  H.  SMcNair  v.  Reisher,  8  Pa.  Co.  Ct 
263 ;  Haskill  v.  Andros,  4  Vt  609.  494. 


770  EXEMPTION    OF    PERSONALTY. 

others,  and  all  debtors  who  may  claim  as  such  without  regard 
to  family  headship  under  some  statutes,  will  be  sufficiently 
noticed  in  the  four  following  chapters. 

§  6.  How  to  Claim. 

When  execution  is  pending,  the  debtor  may  select  his  ex- 
emptions and  claim  them  in  any  way  that  is  intelligible  to  the 
officer.^  Whatever  words  convey  the  meaning  as  to  what  is 
claimed  will  be  sufficient.  Designating  the  selected  chattels 
as  "  free  property "  to  distinguish  it  from  what  had  been 
mortgaged  and  assigned  was  held  sufficiently  explicit  when 
the  sheriff  already  had  a  list  with  some  chattels  marked  as 
"  mortgaged,"  and  some  as  "  assigned  "  and  others  not  quali- 
fied.^ The  claim,  however,  must  be  made  intelligible  to  the 
officer.*  When  two  claimants  of  exemption  signed  one  peti- 
tion, the  claim  was  held  good  as  to  each.* 

It  must  not  be  inferred,  from  the  rule  that  any  substantial 
compliance  with  the  law  requiring  the  application  will  suffice, 
that  a  prescribed  method  of  procedure  is  unimportant.  The 
claimant  must  fulfill  all  the  conditions  precedent  to  the  award- 
ing of  his  exemption,  and  he  is  not  relieved  therefrom  by  a 
liberal  construction  of  the  statutory  requirement.^ 

The  making  of  a  selection,  filing  a  schedule  of  property, 
making  oath  to  the  schedule,  and  doing  what  is  essential  to 
enable  the  officer  to  have  appraisement  made,  are  indispen- 
sable requisites  to  the  setting  apart  of  the  exempt  portion ;  are 
conditions  precedent  to  the  granting  of  the  exemption ;  and 
the  courts  require  strict  compliance  on  the  part  of  the  debtor.^ 
There  is  an  exception  to  this  strict  rule :  if  the  debtor's  whole 
possessions  are  less  than  the  exemption,  and  he  claims,  the 
other  conditions  need  not  be  observed.^ 

The  claim,  or  demand  upon  the  officer,  must  be  in  writing, 
if  the  statute  requires  it ;  and  it  must  be  signed  by  the  appli- 

»  Northup  V.  Cross  (N.  D.),  51  N.  W.  « lb.;  Amend  v.  Smith,  87  111.  198 ; 

718;  Conip.  Laws,  §§  5128-5132.  Biggs  v.  McKenzie,  16  111.  App.  286; 

^Id,  Menzie  v.  Kelly,  8  111.  App.  259. 

» Zielke  v.  Morgan,  50  Wis.  560.  •  Cole  v.  Green,  21  111.  103 ;  Howard 

*  Stanton   v.  French,  83  Cal.    194 :  v.  Rugland,  35  Minn.  388 ;  McAbe  v. 

S3  P.  355.  Thompson,  27  Minn.  134;  Murphy  v. 

*Stallings   v.   Read,   94   Ind.    103;  Sherman,   25    Minn.    196;    Lynd  v. 

Smith  V.  Slade,  57  Barb.  641.  Picket,  7  Minn.  128. 


WHEN   TO   CLAIM.  777 

cant  or  his  agent,  and  delivered  to  the  officer  —  though  leav- 
ing it  with  the  officer's  wife  has  been  held  sufficient.'  The 
exemption  may  be  orally  claimed,  when  there  is  no  particular 
method  prescribed.-  I^ut  if  the  article  thus  claimed  should  be 
afterwards  sold,  it  will  not  be  exempt,  in  the  purchaser's 
hands,  from  execution  against  the  vendor;  and  the  claimant 
cannot  recover  damages  if  an  officer  who  iroes  on  to  sell  re- 
gardless  of  his  claim,  unless  there  has  been  an  affidavit  of  it 
made,'  or  there  is  some  means  of  proving  that  the  claim  was 
demanded.  Fadure  to  claim,  in  some  form,  before  execution 
sale,  is  a  forfeiture  of  the  exemption  privilege;*  but  almost 
any  means  of  conveyance  to  the  officer,  of  the  fact  that  the 
privilege  is  asserted,  will  suffice.  It  is  not  essential  that  the 
applicant  admit  himself  to  be  indebted.  When  the  head  of  a 
family  applies,  he  need  not  aver  ownership  in  himself.^  So,  a 
wife  applying,  need  not  aver  that  the  ownership  is  in  her  hus- 
band, though  such  be  the  case ;  the  application  for  personal 
property  exemption  will  hold  good  without  such  averment  in 
her  petition,  if  the  fact  a])pears  in  her  affidavit  and  list  of 
creditors  making  parts  of  the  record.^ 

Exempt  property  loses  its  character,  as  such,  by  being 
transferred ;  a  note,  by  being  assigned,  for  instance.'  If  the 
character  depends  upon  its  owner's  pursuit  of  a  mechanic  ait, 
the  abandonment  of  the  pursuit  destroys  the  right  of  exemp- 
tion.^ 

§  7.  When  to  Claim. 

The  time  of  claiming  is  far  more  important  than  the  man- 
ner of  it.  It  has  been  held  that  selection  must  be  made  and 
exemption  demanded  before  suit  is  brought,  when  the  suit  is 
for  rent  and  the  property  is  distrained.*  Ordinarily,  however, 
claiming  is  in  time  if  made  before  the  levy.  It  may  be  made 
afterwards  if  the  officer  failed  to  give  the  debtor  notice  be- 

1  Bryan  v.  Kelly,  85  Ala.  569.  «  Cartvvright  v.  Bessnian,  73    Ga. 

2  McCIuskey  v.  McNeely,  8  111.  578 ;  189 ;  Coffee  v.  Adams,  65  Ga.  347 
People  V.  Palmer,  46  111.  402 ;  Cook  v.  (a  homestead  case).  See  Jones  v. 
Scott,  6  111.  333.  Crumley,  61  Ga.  105. 

3  Simpson  v.  Simpson,  30  Ala.  325.  '  Lane  v.  Richardson,  104  N.  C.  642. 

*  Gresham  v.  Walker,  10  Ala.  370.        »  Willis  v.  Morris,  66  Tex.  628. 

*  Braswell  v.  McDaniel,  74  Ga.  319 ;        "  Lindley  v.  Miller,  67  111.  244. 
Gen.  Code,  §2040  +  . 


778  EXEMPTION    OF    PERSONALTY. 

fore.  The  debtor  must  not  delay  for  an  unreasonable  time 
after  knowing,  or  having  notice,  that  execution  is  pending 
ao-ainst  his  }3roperty.  What  is  reasonable  time?  That  often 
depends  upon  circumstances.  Waiting  a  month,  after  notice, 
has  been  held  fatal  to  his  privilege.'  The  claim  need  not 
always  be  before  the  levy.  Usually  it  may  be  at  any  time 
before  the  sale.  Either  before  or  after  the  levy,  the  debtor 
may  file  the  schedule  of  his  property  and  claim,  of  the  officer, 
the  release  of  his  exempt  portion.-  At  any  time  before  the 
betrinninor  of  the  sale,  he  is  allowed  to  claim  in  some  states.' 
Even  after  the  beginning,  he  has  been  permitted  to  claim.* 
It  is  better  for  him,  however,  to  remember  the  legal  maxim : 
"  The  law'  favors  the  vigilant,"  and  the  common  adage :  "  De- 
lays are  dangerous,"  if  he  wishes  to  avoid  the  question  of 
waiver  on  his  part.^ 

The  applicant  may  withdraw  his  claim.^ 

In  exposition  of  a  statute  it  is  held  that  chattels  which  are 
exempt  not  absolutely,  but  qualifiedly,  must  be  claimed  before 
any  suit  for  conversion  will  lie  against  the  sheriff  for  selling 
them  under  execution,  or  to  recov&r  from  him  the  identical 
articles.     The  claim,  if  not  made  to  that  officer  directly,  must 

1  Griffin  v.  Maxwell,  23  111.  App.  405.  «  State  v.  Emmerson,  74  Mo.  607. 

2  Daniels  v.  Hamilton,  52  Ala.  108;  ^A  right  to  claim  may  be  lost  by 
Jordan  v.  Autrey,  10  Ala.  226.  laches.     Burk  v.  Gleason,  46  Pa.  St 

3  Miles  V.  State,  73  Md.  398;  State  297;  Ald&n  v.  Yeoman,  29  111.  App. 
V.  Boulden,  57  Md.  320:  Common-  53,  in  wliich  there  was  failure  to  claim 
woalth  V.  Boj-d,  56  Pa.  St.  402 ;  Bair  within  ten  days  after  notice  of  execu- 
V.  Steinman,  52  Pa.  St  423;  Diehl  v.  tion.  Act  of  1887 ;  Griffin  v.  Maxwell, 
Halben,  39  Pa.  St  213 ;  Rogers  v.  23  111.  App.  405,  in  which  the  delay 
Waterman,  25  Pa.  St  184 ;  Diffen-  of  a  month  proved  fatal.  The  cred- 
dorfer  v.  Fisher,  3  Grant  30;  Bow-  itor  must  claim  in  time  and  com- 
yer's  Appeal,  21  Pa.  St  210 ;  Weaver's  ply  with  all  the  conditions.  lb.  In 
Appeal,  18  Pa.  St  307 ;  Miller's  Ap-  Wright  v.  Deyoe,  86  111.  490,  it  was 
peal,  16  Pa.  St  300;  Hammer  v.  held  too  late  to  claim  on  the  day 
Freese,  19  Pa.  St  255 ;  Wright  v.  after  levy,  when  the  debtor  was  duly 
Deyoe,  86  111.  490 ;  People  v.  Palmer,  notified  before.  The  officer  may  sell 
46  111.  398 ;  Butt  v.  Green,  29  O.  St  unclaimed  property  with  impunity, 
667.  See  Morris  v.  Shafer,  93  Pa.  when  it  is  not  specifically  exempt. 
St  489.  In  Appeal  of  Williamson,  lb.;  Bingham  v.  Maxcy,  15  111.  290; 
132  Pa.  St  455,  a  claim  made  sixteen  People  v.  Palmer,  46  111.  398 ;  Cook 
days  after  the  writ  had  issued  was  v.  Scott' 1  Gilm.  333. 

held  to  be  in  time,  as  no  day  of  sale        ^  Appeal  of  Overseers,  95   Pa.  St. 
had  been  let,  no  advertisement  made     191. 
and  no  costs  incurred. 


THE    OFFICEK's    DUTY.  779 

be  notified  to  hiin  by  the  debtor,  before  bringing  either  of  the 
actions  mentioned.' 

§  8.  The  Officer's  Duty. 

The  question  generally  is,  when  there  is  a  contest  between 
the  debtor  and  the  officer  relative  to  exemption,  whether  the 
former  was  at  fault  for  not  claiming,  or  the  latter  at  fault  for 
selling  without  setting  absolutely  exempt  property  apart,  or 
selling  without  giving  opportunity  for  selection  when  the  ex- 
emption was  conditioned  upon  its  being  claimed.  The  officer 
in  charge  of  an  exemption  must  go  on  with  it,  leaving  the  ex- 
emptionist  to  claim  his  privilege  or  let  it  alone;  he  is  not  re- 
quired to  risk  a  suit  against  him  by  the  creditor  for  not  doing 
his  best  to  collect  the  money  due  under  the  judgment;  and  he 
is  not  obliged  to  stand  between  two  fires,  liable  to  receive  the 
shot  of  one  while  dodging  that  of  the  other.  The  true  rule 
seems  to  be  that  he  must  take  note  of  the  absolute  exem])tions, 
and  that  he  can  disregard  them  only  at  his  peril;  that  he  must 
afford  what  facilities  the  law  requires  him  to  give,  when  the 
exemption  is  subject  to  the  debtor's  claim ;  that  beyond  this, 
he  may  not  go  without  incurring  the  just  charge  of  failing  to 
execute  the  writ  in  the  interest  of  the  judgment  creditor.^  But 
he  is  not  bound  to  heed  the  statements  of  the  creditor.  When 
there  has  been  no  waiver,  and  the  sheriff  knows  that  exemp- 
tion is  claimed,  he  cannot  disregard  the  debtor's  rights  on  the 
assertion  of  the  creditor  that  those  rights  have  been  forfeited.* 

When  the  officer,  by  any  means,  disallows  the  debtor's 
right  and  opportunity  of  claiming,  the  debtor  may  follow  the 
goods  into  the  hands  of  the  purchaser  at  the  sale  and  recover 
them,  or  he  may  recover  their  value  of  the  officer  —  especially 
when  the  goods  consist  of  provisions  for  the  six  months  ensu- 
ing, which  the  law  protects  for  the  benefit  of  the  family.^     If 

1  Wilcox  V.  Howe,  59  Hun,  268,  Dains  v.  Prosser,  32  Barb.  291 ;  Baker 
271;  N.  Y.  Code  Civ.  Proc,  §§  1890,  v.  Brintnall.  52  Barb.  188;  Smith  v. 
1391 ;  Russell  v.  Dean,  30  Hun,  242;     Hill,  22  Barb.  656. 

Turner  v.   Borthvvick,  20  Hun,  119;  3  Williamson    t.    Krunibliaar,    182 

Baker  v.   Brintnall,   52    Barb.   188 ;  Pa.  St.  455.     See  Larkin's  Estate,  132 

Anderson  v.  Ege,  44  Minn.  216 ;  Long-  Pa.  St.  554. 

ley   V.   Daly  (S.  D.),  46  N.  W.   247 ;  ^  Stillson   v.  Gibbs,   53   Mich.  280, 

Comp.  Laws  of  Dak.,  §  5126.  Cooley,  C.  J. ;  Town  v.  El  more,  38  Mich. 

2  See    generally    on    this    subject,  805 ;  Wyckoff  v.  Wyllis,  8  Mich.  48. 


780  EXEMPTION    OF    PERSONALTY. 

the  officer  makes  selection  for  the  debtor,  preventing  the  lat- 
ter from  choosing  for  bimself,  he  is  responsible.  "Where,  in 
making  the  selection  himself,  he  set  apart  to  the  debtor  cer- 
tain mortgaged  property  which  was  worth  nothing  beyond 
the  mortgage,  he  was  held  to  have  defrauded  the  debtor.^  The 
officer  is  bound  to  give  the  debtor  opportunity  to  make  his 
own  selection,  whether  the  property  be  levied  upon,  attached 
or  subjected  to  garnishment.^  "  He  must  apprise  the  defend- 
ant of  his  rights.  He  must  yield  to  the  defendant's  selection, 
and  release  to  him  the  property  selected  up  to  a  prescribed 
limit  of  value.  He  is  invested  with  authority  to  ascertain  the 
value  by  appraisement,  and  to  give  full  efficacy  to  the  law's 
bounty.  He  must  pay  over  to  the  defendant  his  share  out  of 
the  proceeds  of  a  sale.  In  short,  the  whole  subject-matter  of 
the  debtor's  protection  seems  committed  to  the  officer,  and 
none  other  is  designated  for  any  step  in  the  process."  ^  If,  in 
the  exercise  of  these  powers,  the  officer  go  wrong,  the  parties 
may  correct  him  by  resort  to  the  court.  For  instance,  the  de- 
fendant may  take  from  an  officer,  by  replevin,  personal  prop- 
erty which  is  exempt,  Vv'hen  no  opportunity  to  claim  has  been 
given  him,  and  the  execution  is  premature.*  Or,  under  some 
circumstances,  a  levying  officer  may  be  prosecuted  criminally 
for  the  contravention  of  a  statute  imposing  duties  upon  him 
relative  to  absolute  exemption  —  the  act  being  made  a  mis- 
demeanor.^ It  would  be  otherwise  when  exemption  is  not  ab- 
solute.^ 

The  officer  is  none  the  less  bound  to  do  his  duty  towards 
the  defendant,  in  respect  to  the  exemption  claimed,  though  he 

1  Bayne  v.  Patterson,  40  Mich.  658,  horse    belonging    to  one  Boyd,   the 

Campbell,  C.  J.  head  of  a  family,  who  was  a  farmer. 

-State  V.  Barada,  57  Mo.  562;  State  He  sold  under  a  writ  in  his  official 

V.    Romer,    44    Mo.    99;    Mahan   v.  capacity  as  constable.     The  act  posi- 

Scruggs,    29    Mo.    282 ;     Garrett    v.  tively  exempted  "  one  farm  horse," 

Farmer,  21  Mo.  160.     See  Gregory  v.  etc.     The  prisoner  was  found  guilty 

Evans,    19  Mo.   261 ;   Gordon  v,  Mc-  and  fined. 

Curdy.  26  Mo.  304 ;  Wimer  v,  Pritch-  6  When  one  of  several  articles  is 

artt,  16  Mo.  252 ;   State  v.  Kane,  42  exempt,  and  the  defendant  has  not 

Mo.  App.  253.  chosen  till  the  levy,  he  has  been  al- 

'  State  v.  Barada,  supra.  lowed  to  take  one  levied  upon  by  re- 

*  Clark  v.  Bond,  7  Bax.  288.  placing    it  with   another  which   he 

5  State  V,  Haggard,  20  Tenn.  390.  does  not  choose  to  retain.     Pyett  v. 

Haggard  was  indicted  for  selling  a  Rhea,  6  Heisk.  137. 


THE  officer's  duty.  781 

holds  an  indemnity  bond  from  the  plaintiff  who  urged  l)im  to 
go  on  and  sell.'  lie  must  inform  the  debtor  of  his  exeni})tion 
rights,  unless  the  debtor  claims  all  the  property  levied  upon 
as  exem))t." 

The  owner  himself  is  the  only  proper  party  to  proceed 
against  an  officer  to  recover  for  the  conversion  of  his  prop- 
erty. It  is  a  good  defense  to  deny  the  plaintiff's  ownership 
or  legal  right  of  possession.  The  officer,  in  levying  u[)on 
property  under  the  writ,  does  not  thus  so  affirm  it  to  belong 
to  the  defendant  as  to  preclude  himself  from  denying  the 
ownership  wdien  sued  for  false  levy.  The  officer  is  not  es- 
topped b}''  his  official  act.^ 

Until  the  debtor  has  claimed  exemption  in  seized  property, 
he  cannot  take  it  from  the  officer  by  replevin ;  for  the  officer 
had  the  ri^ht  to  seize,  though  no  rio^ht  to  hold  after  claim 
duly  made,  when  the  property  belongs  to  a  class  from  which 
selection  is  to  be  made.''  It  is  true  that  the  officer  is  presumed 
to  know  the  law  and  is  bound  to  respect  it,  in  relation  to  ex- 
emption as  well  as  to  any  other  matter ;  ^  and  there  is  a  pre- 
sumption that  the  debtor  will  claim;''  yet  he  cannot  know 
assuredly  that  he  will  when  the  exemption  is  not  absolute. 
Though  the  debtor  may  have  claimed  generally  "  the  exemp- 
tion allowed  by  law,"  the  officer  is  not  to  blame  for  going  on 
with  the  sale  when  the  debtor  failed  to  appear  at  the  time 
appointed  to  make  his  selection.^  The  unavoidable  absence 
of  the  debtor  may  excuse  his  failure  to  claim  such  necessary 
household  goods  as  beds  and  bedding,  especially  when  the 
officer  knew  of  their  exempt  character  from  their  being  claimed 
in  a  former  suit.^ 

In  a  suit  against  a  sheriff  for  refusing  to  allow  the  debtor 
to  select  personal  property  exempt  by  statute,  the  allegation 
that  the  sheriff  by  his  deputy  did  convert  it  to  his  own  use  is 

1  Coville  V,  Bentley,  76  Mich.  348.  *  Tullis  v.  Orthwein,  5  Minn.  305. 

2  Smythe  v.  Kane,  42  Mo.  A  pp.  253 ;        » Maxwell  v.  Reed,  7  Wis.  493. 
Brown  v.  Hoffmeister.  71  Mo.  411.  6  State  v.  Harper,  120  Ind.  23. 

3Cassell  V,  Williams,   12   111.  387;  ^Butt  v.   Green,    29    O.   St    667; 

Ice  V.  McLain,  14   IlL    64 ;   Cook  v.  Frost  v.  Shaw,  3  O.  St.  270 ;  Twinam 

Scott,  1  Gil.  344.   See  Arenz  v.  Reilile,  v.  Swart,  4  Lansing,  263. 

1  Scam.  340.  8  Haswell  v.  Parsons,  15  Cal.  266. 


782 


EXEMPTION    OF    PERSONALTY. 


sufficient  averment  that  the  deputy  was  acting  under  the  de- 
fendant as  sheriff.^ 

An  officer,  who  departs  from  his  line  of  duty,  is  liable  at 
every  step,  but  he  is  not  to  be  denied  his  proper  defenses,^ 

§  9.  Limitations. 

The  debtor  is  not  entitled  to  two  or  more  exemptions  be- 
cause two  or  more  executions  are  pending  against  him.  If 
specified  chattels,  or  a  sum  of  money  to  be  reserved  him  from 
the  proceeds  of  executed  property,  be  saved  to  him  by  the 
statute,  he  can  get  no  more  because  several  different  creditors 
have  brought  separate  suits  against  him.  If  his  horse  is  ex- 
empt, he  may  claim  the  exemption  of  that  one  horse  against 
each  attack,  and  have  his  horse  after  all  the  execution  sales 
are  over,  and  only  that  one  horse.^  Two  exemptions  are 
"quite  contrary  to  the  spirit  of  the  statute"  granting  one;'* 
rather,  the  exemption  of  two  things,  when  the  statute  author- 
izes that  of  one,  would  be  contrary.     It  does  not  matter  if,  in- 


1  Hutchinson  v.  Whitmore  (Mich.), 
51  N.  W.  451,  distinguishing,  as  to 
right  of  selection,  McCoy  v.  Brennan, 
6.1  Mich.  362.  How.  Stat,  ch.  266, 
g  27  (S). 

2  An  officer  charged  with  making 
an  unlawful  levy  upon  a  horse  was 
denied  the  right  to  prove  that  the 
debtor  had  other  horses,  which  de- 
nial was  held,  on  appeal,  to  have  been 
error.  Gass  v.  Van  Wagner,  63  Mich. 
610.  An  officer  was  declared  a  tort- 
feasor for  selling  exempt  property 
that  liad  been  duly  claimed  by  the 
debtor.  McCoy  v.  Biennan,  61  Mich. 
363.  But  if  the  debtor,  claiming  ex- 
empt property  from  that  which  is  non- 
exempt,  do  not  turn  over  the  latter 
to  the  officer,  he  cannot  recover  the 
statutory  penalty  from  him  for  disre- 
garding the  claim,  iu  Illinois.  Udell 
V.  Howard,  28  111.  App.  124 ;  McMas- 
ters  V.  Alsop,  85  111.  157.  An  officer, 
who  has  levied  upon  a  debtor's  prop- 
erty from  which  the  latter  selects  as 
exempt  what  he  is  privileged  to 
choose    undar    the  law,    becomes  a 


trespasser  if  he  continues  to  hold  the 
exempt  portion  after  the  selection 
and  demand  of  surrender.  Hombs  v. 
Corbin,  34  Mo.  App.  393,  399;  Baily 
V.  Wade,  24  Mo.  App.  190 ;  State  v. 
Barada,  57  Mo.  562.  If  the  selection 
be  delayed  till  the  very  eve  of  the 
sale,  the  officer  must  heed  it.  State 
V.  Emmerson,  74  Mo.  607.  If  the  prop- 
erty claimed  be  indivisible  and  ex- 
cessive, the  officer  must  have  an  ap- 
praisement made;  and,  were  he  to 
go  on  and  sell  without  it,  he  would 
lay  himself  liable.  Glendon  v.  Har- 
rington, 33  Mo.  App.  476;  State  v. 
Kurtzeborn,  2  Mo.  App.  335 ;  State  v. 
Finn,  8  Mo.  App.  261 ;  State  v.  Car- 
roll, 9  Mo.  App.  275.  If  all  the  prop- 
erty levied  upon  is  absolutely  exempt, 
the  officer  is  not  to  await  the  claim- 
ing, but  surrender  it.  Harrington 
V.  Smith,  14  Colo.  376.  It  is  only  in 
case  of  excess  that  the  debtor  must 
claim.  Behymer  v.  Cook,  5  Colo. 
399. 

3  McCreary's  Appeal,  74  Pa,  St  194. 

■I  Eberhart's  Appeal,  39  Pa.  St  512, 


I.IMITATIONS.  7S3 

stead  of  two  executions  of  the  same  sort,  one  is  under  an 
attachment :  the  rule  that  the  one  exemption  cannot  be  allowed 
in  each  (so  that  the  debtor  would  retain  six  hundred  dollars 
instead  of  the  statutory  three  hundred)  is  the  same.'  Were 
the  rule  otherwise,  the  debtor  might  grow  rich  u))on  his  ex- 
emptions, if  daily  executions  were  leveled  again^^t  his  prop- 
erty. But  the  debtor  is  entitled  to  his  one  exemption  every 
time  he  is  sued.  One  horse  might  run  through  twenty  law- 
suits. The  fact  that  wages  have  been  held  exempt  in  the  suit 
of  Green  against  Blue  does  not  prevent  the  same  sum  from 
being  held  exempt  in  the  several  suits  of  White,  Black  and 
Gray  against  Blue.  It  has  been  held  that  where  thirty  dollars 
are  exempt  when  due  as  the  wages  of  a  mechanic,  and  he  has 
"already  been  allowed  small  sums,  in  small  suits,  amounting  to 
the  maximum,  he  yet  may  successfully  plead  exemption  in  an- 
other suit.^ 

Exemption  has  been  allowed  when  claimed  under  an  alias 
execution,  after  allowance  under  the  first  w^rit.^ 

The  riffht  to  claim  to  a  certain  amount,  or  to  a  certain  num- 
ber  of  things,  includes  the  right  to  claim  less.*  A  statute  ex- 
empted one  horse  not  exceeding  a  hundred  dollars  in  value, 
but  allowed  other  personalty  to  be  selected  to  the  amount  of 
an  additional,  equal  sum.  The  debtor  claimed  a  horse  worth 
more  than  the  sum  named,  but  less  than  that  of  the  whole 
allowable  chattel  exemption.  The  provision  was  construed 
favorably  to  the  claim.  The  court  said:  "  A  thing  named  in 
a  statute  is  not  within  its  provisions  unless  it  be  within  the 
intention  of  the  framers  of  the  act.  .  .  .  Unless  this  claim 
is  sanctioned,  then  we  find  a  person  with  property  not  within 
the  letter  .  .  .  but  within  the  spirit  and  reason  .  .  . 
who  could  have  no  benefit.  ...  To  hold  that  he  cannot 
claim  this  property  is  to  hold  that  he  may  be  stripped  of  all 
the  property  of  this  class  that  the  lawmaker  intended  he 
.should  hold."  5 

If  the  debtor  select  indivisible  property  worth  more  than  the 

1  Vogelsong  v.  Beltzhoover,  59  Pa.  »  Chatten  v.  Snider,  126  Ind,  387 ; 
St  57.     Compare  Chatten  v.  Snider    26  N.  E.  166. 

(Ind.),  26  N.  E.  166.  <  Cornelia  v.  Ellis,  11  III.  584. 

2  Waite  V.  Fransiola,  90  Tenn.  191 ;        »  lb.;  Good  v.  Fogg,  61  111.  449. 
16  S.  W.  116.  ' 


784:  EXEMPTION    OF    I'ERSONALTY. 

amount  exempted,  he  cannot  retain  it  by  paying  the  excess, 
it  has  been  held  in  exposition  of  a  statute  specifying  certain 
classes  of  articles  of  stated  value  as  susceptible  of  selection  and 
claim  by  the  debtor.^ 

§  10.  Money  in  Lieu  of  Chattels. 

It  has  been  held  that  a  debtor  entitled  to  retain  a  certain 
amount  of  goods  estimated  by  money  cannot  claim  the  money 
itself  in  lieu  of  the  goods.'^  Where  three  hundred  dollars' 
worth  of  property  was  allowed  by  law,  in  a  case  involving 
this  point  the  court  said :  "  We  are  of  the  opinion  that  a 
debtor  cannot,  under  any  circumstances,  entitle  himself  to 
the  $300  of  the  money  for  which  his  personal  property  sells 
at  sheriff's  sale.  The  act  speaks  of  property,  not  money.  It 
requires  him  to  elect  the  goods  he  wishes  to  retain  and  have 
them  appraised ;  and  property  thus  chosen  and  appraised 
shall  be  exempt  from  levy  and  sale.  This  excludes  the  idea 
that  he  is  to  have  his  choice  between  retaining  the  property 
and  demanding  money  out  of  the  proceeds.  There  are  sound 
reasons  why  he  should  take  the  goods  or  take  nothing.  The 
law  was  made  for  the  benefit  of  the  families  of  debtors  rather 
than  for  the  debtors  themselves;  and  a  family  stripped  of 
every  comfort  might  not  be  much  better  of  $300  in  the 
pocket  of  a  shiftless  father.  Property  which  appraisers  would 
value  at  $300  might  not  sell  for  the  half  of  it ;  and  if  debt- 
ors iiad  this  choice  it  would  deprive  the  creditors  of  twice  as 
much  property  as  the  law  intended  to  take  from  them."  This 
argument  may  be  easily  turned  around  so  as  to  act  like  a 
boomerang;  for  the  property  might  sell  for  twice  as  much 
as  the  appraisement,  and  thus  the  creditors  might  be  bene- 
fited by  allowing  the  cash  claim.  But  finally,  the  true  rea- 
son appears :  the  law  says  so.  "  The  act  .  ,  .  gives  the 
right  of  designating  [the  articles]  to  the  debtor  himself,  fixes 
the  quantity  of  them  by  their  value  and  points  out  the  mode 
of  ascertaining  that  value." '  The  statute  referred  to  ex- 
empted three  hundred  dollars'  worth  of  ijroperty ;  not  mov- 
ables merely.  If  indivisible  real  estate  is  to  be  sold,  must  a 
piece  of  that  value  be  cut  off  for  the  debtor  before  sale? 

1  Cook  V.  Scott,  6  in.  333 ;  Waldo  v.        2  Young  v.  Boulden,'57  Md.  314. 
Gray,  14  111.  184.  3  Hammer  v.  Freese,  19  Pa.  St  255. 


CHATTELS    IN    LIED    OF    HOMESTEAD.  785 

No  —  he  is  allowed  that  sum  from  the  proceeds  of  tlie  sale 
of  the  whole,  provided  he  put  in  his  claim  in  due  time.  This 
is  expressly  required  by  the  statute  '  Even  movables  sold 
by  execution  under  such  circumstances  as  to  deprive  the  ex- 
emptionist  of  his  opportunity  of  claiming  the  allowed  portion 
of  the  things  themselves  may  be  substituted  by  their  value  in 
money  from  the  proceeds  of  the  sale,^  and  if  the  debtor's 
property,  seized  under  execution  and  sold,  be  not  suscep- 
tible of  division,  he  ought  to  be  allowed  the  value  of  his 
exemption  from  the  proceeds  of  the  sale.  This  has  been 
allowed  under  statute,"  but  may  be  understood  when  the 
statute  is  silent  on  the  point,  yet  not  inhibitory ;  for  he  is 
entitled  to  his  slice  from  the  indivisible  lump,  and  the  only 
practical  way  of  giving  it  to  him  is  to  transform  the  article 
to  cash  and  give  him  his  portion.  This  is  in  case  of  forced 
sale.  When  exempt  chattels  are  voluntarily  sold  by  their 
owner  the  proceeds  are  not  exempt  unless  the  statute  makes 
them  so.*  If  chattels  specifically  exempt  have  been  sold  under 
execution  and  the  proceeds  are  in  the  sheriff's  hands,  the 
money  cannot  be  reached  by  creditors.^  But  it  has  been  held 
that  money  due  for  damage  to  exempt  property  is  subject 
to  a  different  rule,  and  is  not  exempt.^ 

§  11.  Chattels  in  Lieu  of  Homestead. 

When  the  statute  gives  chattel  exemption  only  to  those 
not  entitled  to  homestead,  curious  situations  sometimes  are 
presented ;  as,  for  instance,  a  claimant  denied  because  he  did 
not  prove  himself  an  unmarried  man.  He  had  labored  in  the 
production  of  a  crop,  and  claimed  c  third  part  of  it,  under 
statute.     The  court  said  that  the  express  object  of  the  pro- 

1  Miller's  Appeal,  16  Pa.  St.  300.  Jones  v.   Ehrlisch,  C5  Ga.  546.     See 

2  Smith  V.  Slade,  57  Barb.  637.    This  Moultrie  v.  Elrod.  23  Ga.  393. 
decisionwasunder  a  statute  not  quite  ^  Bramble  v.    State,    41    Md.   435; 
like  that  under  which  those  of  Penn-  State  v.  Boulden,  57  Md.  318 ;  Md. 
sylvania  were  rendered.    See  Seaman  Code,  art.  83,  {5  10. 

V.    Luce,   23   Barb.    242;    Lockwood  ^  Harrier  v.  Fassett,  06  Iowa,  264; 

V.   Younglove,    27    Barb.    506.     The  Friedlander  v.  Mahoney,  31  la.  311 ; 

$1,000  exemption,  under  the  Georgia  Carty  v.  Drew.  46  Vt  346;  Knabb  v. 

constitution  of    1877,   could    not   be  Drake.. 23  Pa.  St  489. 

claimed  in  money.  Johnson  v.  Dobbs,  ^  Howard  v    Tandj'.   79  Tex.   450 ; 

69  Ga.   605.     So  under  Georgia  con-  Cone  v.  Lewis,  64  Tex.  332. 

stitution  of  1868  and  Code,  g  2016.  6  Johnson  v.  Edde,  58  Miss.  664. 
50 


786  EXEMPTION    OF    PERSONALTY. 

vision  invoked  was  "  to  secure  exemption  in  the  nature  of  a 
homestead,  of  one-third  of  the  yearly  'products  or  earnings,' 
to  every  person  'not  being  the  head  of  a  family,'  and  not  to 
persons  who  are  heads  of  families,  as  they  have  the  right  to 
the  homestead  exemption,  in  a  proper  case,  by  laying  claim 
thereto  as  provided  by  law.  In  order  to  obtain  the  benefit 
[of  one-third  the  crop]  ...  it  devolves  upon  the  re- 
spondent to  show  that  he  '  is  not  the  head  of  a  family.'  "  ^ 

The  usual  ground  for  granting  chattel  exemption  in  lieu  of 
homestead,  under  the  few  statutes  providing  for  such  substi- 
tution, is  not  that  the  condition  of  family  headship  is  wanting 
but  that  another  condition  is  lacking  —  ownership  of  realty .- 
In  such  case,  having  a  wife  is  no  obstacle  to  the  substitution ; 
she  may  even  be  the  claimant  of  the  benefit  when  she,  as  well 
as  her  husband,  is  landless,^  A  tenant  by  the  3'^ear  was  al- 
lowed chattel  exemption,  under  such  a  statute,  on  the  ground 
that  his  leasehold  was  not  such  ownership  as  the  legislator 
contemplated  when  cutting  off  land-holders  from  the  benefit 
of  the  special  provision  made  for  those  not  entitled  to  home- 
stead.^ Ordinarily,  leasehold  title  is  sufficient  to  support 
homestead,  as  has  been  shown  ;^  but  the  construction  above 
given  was  that  of  the  statute  providing  for  the  granting  of 
chattel  exemption  as  a  substitute  for  homestead."  Thus  while 
leasehold  title  is  ownership  under  homestead  law,  it  is  not  under 
the  statute  mentioned ;  but  both  are  in  pari  materia  relative  to 
the  exemptionist,  and  therefore  he  cannot  have  both  exemp- 
tions on  the  paradoxical  grounds  that  he  is  the  owner  of  real 
estate  and  is  not  the  owner  of  real  estate. 

One  may  own  or  not,  in  different  relations.  And  the  same 
property  may  be  realty  in  one  relation  and  personalty  in  an- 
other. Fixtures,  for  illustration,  may  take  on  either  charac- 
ter.    A  wind-mill  having  been  attached  to  a  homestead,  the 

1  Prince  v.  Nance,  7  S.  C.  351.  Neb.  90;  Mann   v.  Welton,  21  Neb. 

2  In  Nebraska.  $500  of  personal  ex-  541 ;  Nebraska  Civ.  Code  Proc,  ^521. 
emption  is  allowed  in  lieu  of  home-  ^  Regan  v.  Zeeb,  28  O.  St.  483 ;  State 
stead  to  the  landless.  Cunningham  v.  Wilson  (Neb.),  48  N.  W.  147.  See 
V.  Conway,  25  Neb.  615 ;  Desmond  v.  Slanker  v.  Beardsley,  9  O.  St.  589. 
State,  15  Neb.  438;  Swaney  v.vHutch-  ^  Colwell  v.  Carper,  15  O.  St.  279. 
ins,  13  Neb.  266 ;  Williams  v.  Golden,  &  Ante,  pp.  108,  113. 

10   Neb.  432 ;  Chesney  v.  Francisco,        6  Ch.  66,  Ohio  Laws,  48,  50. 
12  Neb.  626 ;  State  v.  Cunningham,  6 


CHATTEL   EXEMPTION    TO   WIDOWS.  787 

vendor  sued  for  the  price  on  notes  given  therefor,  obtained 
judgment,  issued  execution  and  levied  upon  the  homestead, 
treating  the  mill  as  an  improvement  and  the  debt  therefore 
not  affected  by  exemption.  The  defendant  to  this  suit  became 
plaintiff  in  an  injunction  suit  to  restrain  the  execution.  The 
court  said,  in  the  injunction  case  (after  stating  the  general  rule 
that  the  character  of  a  fixture,  as  personalty,  depends  upon  its 
separability  from  the  real  estate  to  which  it  is  attached,  with- 
out injury  to  the  latter) : '  "In  the  sale  of  personal  property 
that  is  to  be  affixed  to  realty,  the  contracting  parties  at  the 
time  of  the  sale  have  the  power,  as  between  themselves  at 
least,  to  fix  the  status  of  such  property,  and  to  say  whether, 
when  affixed  to  the  realty  of  the  vendee,  it  shall  remain  per- 
sonal property  or  become  part  of  the  realty."  '^  And  the  court 
found  that  by  the  agreement  of  the  contracting  parties  the 
wind-mill  had  remained  personalty,  and  so  the  injunction  was 
sustained.' 

§  12.  Chattel  Exemption  to  Widows. 

The  exemption  right  of  a  husband  descends  to  his  widow, 
when  she  continues  to  live  at  the  family  home  and  provides 
for  the  children.  A  widow  sued  for,  and  recovered,  a  team 
of  horses  and  a  wagon  which  had  been  seized  in  execution  in 
a  suit  against  her  husband  while  he  was  living.'*  She  is  en- 
titled absolutely  to  the  exempt  personalty  of  her  late  hus- 
band, for  herself  and  the  children,  by  some  states ;  ^  while  by 
others,  she  has  the  use  of  the  personal  property  though   it  is 

1  Citing  Walker    v.   Sherman,   20  Rep.  995 ;  Ford  v.  Cobb,  20  N.  Y.  344 : 

Wend.  63f>.  Holmes  v,  Tremper,  20  Johns.  29. 

2 Marshall v.Bacheldor, 47 Kan. 442;       ^Becker  v,  Becker,  47  Barb.  497; 

28  P.  169 ;  Fortman  v.  Geopper,  14  O.  Brigham  v.  Bush,  33  Barb.  596 ;  Van 

St.  558 ;  Benj.  on  Sales,  §  425 ;  Tied.  Buren  v.  Loper,  29  Barb.  389 ;  Wilcox 

on  Sales,  §§  83,  85.  v.  Hawley,  31  N.  Y.  648 ;  Kneettle  v. 

3  The  opinion  concludes  as  follows :  Newcomb,  22  N.  Y.  249 ;  Woodward 

"  If  said  property  did  not  constitute  v.  Murray,  18  Johns.  400 ;  Thompson 

an  improvement  upon  the  realty,  the  v.  Ogle  (Ark.),  17  S.  W.  593  (Act  of 

homestead  would    be  exempt  from  1887,  p.  207). 

the  payment  of  the  debt  contracted        ^Gen.   Stat.  Kansas  (1889),  ch    88, 

therefor,  and  the  sale  of  the  liome-  §  3 ;    Donmeyer    v.    Donmeyer,    43 

stead  to  satisfy  such  debt  should  be  Kan.  444;  Thompson  v,  Alexander, 

enjoined."     Eaves  v  Estes,  10  Kan.  11  Heisk.  313;  Merriman  v.  Lacefield, 

314;    Railroad    Co.    v.    Morgan,    43  4  Heisk.  209,  220;  Vincent  v.  Vincent, 

Kan.  23,  21  Pac.  Rep.  809,  23  Pac.  1  Heisk.  343;  Bayless  v.  Bayless,  4 


788  EXEMPTION   OF   PERSONALTY. 

not  absolutely  at  her  disposal.^    Her  right  to  the  exemption 
does  not  depend  upon  need,  as  a  general  rule.^ 

When  there  is  a  specific  sum  exempt  by  statute  in  favor  of 
the  widow,  she  takes  it  absolutely  from  her  husband's  estate ; 
and  should  she  die  before  receiving  it,  her  administrator  may 
recover  it.'  In  a  state  where  she  may  claim  money,  instead 
of  specific  chattels,  from  her  husband's  estate,*  she  must 
claim  before  the  property  of  the  estate  has  been  sold  by 
the  administrator  to  pay  debts.*  As  the  privilege  of  claim- 
ing is  personal,  she  must  exercise  it  promptly ; "  and  her  fail- 
ure to  claim,  or  to  demand  an  appraisement,  is  waiver.^  Her 
right  does  not  always  depend  upon  the  solvency  or  insolvency 
of  the  estate,*  but  the  time  of  claiming  the  exemption  may 
depend  upon  it.  If  the  estate  is  solvent,  claim  may  be  made 
at  any  time  before  the  administrator's  final  settlement.^  The 
widow's  right  to  her  exemption  vests  immediately  upon  the 
death  of  her  husband,  as  to  his  specifically  exempt  chattels,^" 
so  that  her  heirs  would  inherit  them  from  her  if  she  should 
die  before  receiving  them.^^  In  one  state,  she  takes  her  exemp- 
tion amount  absolutely,  as  to  the  creditors  of  the  estate,  but 
not  as  to  the  children  of  the  deceased.  Whether  she  must 
give  security  or  not  depends  upon  the  existence  of  such  chil- 

Coldwell,  359;  Myers  v.  Forsythe,  10        ^Pa,  Stats,  of   1851,  1859;  Seller's 

Bush.  394;  York  v.  York,  38  111.  523;  Estate,  83   Pa.  St.    153;    Peterman's 

Jordan   v.  Strickland,  43  Ala.    315;  Appeal,  26  P.  F.  Smith,  116;  Baldy's 

Fowler  v.  Gilmore,  30  Tex.  433 ;  Pas-  Appeal,    4    Wright,   338.      Compare 

dial's  Dig.,  art.  3798.    See  Longley  v.  Hufmau's  Appeal,  81  Pa.  St.  329. 
Daily  (S.  D.),  46  N.  W.  247.  »  Lyman  v.  Byam,  38  Pa.  St  475. 

1  Meyer  v.  Meyer,  23  la.  359,  377 ;  6  Burk  v.  Gleason,  4G  Pa.  St.  297. 
Paup  V.  Sylvester,  33  la.  371 ;  Geskell  7  Davis'  Appeal,  34  Pa.  St.  256 ; 
V.  Case,  18  la.  147;  Wilmington  v.  NefE's  Appeal,  9  Harris  (Pa.),  247; 
Sutton,  6  la.  44.  See  Van  Doran  v.  Weaver's  Appeal,  6  Harris  (Pa.),  309. 
Marden,  48  la.  186,  as  to  the  differ-  8  Compher  v.  Compiler,  25  Pa.  St. 
ence  between  homestead  and  chattels  31 ;  Mason  v.  O'Brien,  43  Miss.  420, 
in  respect  to  the  exemption  claim  of  437. 

the  widow.   Wally  v.  Wally,  41  Miss.  *>  Thompson  v.  Thompson,  51  Ala. 

648  (Act  of  1860) ;  Whitley  v.  Steph-  493. 

enson,    38    Miss.    115 ;     Coleman    v.  lo  York  v.  York,  38  111.  522. 

Brooke,  37  Miss.  71.  ii  76.;  Hastings  v.   Myers,    21    Mo. 

2  Chism  V.  Chism,  41  Ala,  327 ;  519.  See  Kellogg  v.  Graves,  5  Ind. 
Johnston  v.  Davenport,  43  Ala.  317.  509;    Downs  v.  Downs,  17  Ind.  95; 

3  Hastings  v.   Myers,   21  Mo.  519,  Sheldon  v.  Bliss,  4  Seld.  (N.  Y.)  34. 
under  Mo.  R  S.  of  1845,  p.  77. 


CHATTEL   EXEMPTION    TO    WIDOWS.  789 

dren.^  If  the  decedent  has  left  children  but  no  widow,  they 
take  the  exempt  property.^  But  it  does  not  follow,  from  the 
rig-ht  of  the  children  to  claim  exempt  personal  property  from 
the  estate  of  their  father,  that  they  may  also  claim  it  from 
the  estate  of  their  mother.^ 

It  was  held,  where  the  widow  has  her  election  between 
chattels  and  the  money  allowed  by  statute,  and  allotment  to 
her  has  been  made,  the  probate  court  cannot  set  the  award 
aside  ex  mero  motu} 

It  is  the  duty  of  the  executor  or  administrator  of  the  estate 
of  her  deceased  husband  to  set  it  apart  to  her,  upon  her  de- 
mand, without  unnecessary  delay;  but  if  she  has  helped  her- 
self to  it,  she  cannot  hold  his  administrator  in  damages  for  not 
having  set  it  apart  to  her.^ 

Where  it  is  the  duty  of  the  probate  court  to  set  apart  per- 
sonal property,  for  the  use  of  the  widow  and  children  of  a  de- 
cedent, to  an  amount  not  exceeding  fifteen  hundred  dollars  in 
addition  to  specific  chattel  exemptions,  in  obedience  to  statute, 
it  is  held  that  this  additional  property  is  not  to  be  administered 
as  assets  of  the  decedent's  estate,  nor  distributed  to  his  heirs. 
It  becomes  the  absolute  property  of  the  widow  when  there  is 
no  minor  child.^ 

The  probate  court's  allowance  for  the  support  of  the  widow, 
from  the  estate  of  the  decedent,  is  not  attachable  for  her 
debts.''  The  purpose  is  to  provide  for  her  personal  wants  and 
those  of  the  bereft  family.^  It  has  been  held  that  she  was 
entitled  to  nothing  as  the  widow,  when  she  had  deserted  her 
husband  and  was  living  apart  from  him  when  he  died.^  Aliter, 
when  he  had  deserted  her.^° 

1  Succession  of  Hunter,  13  La,  Ann.  relative  to  the  exempt  $300  to  the 

257 ;   Succession    of  Tassin,    12   La.  widow. 

Ann.  885.  6  North  Dakota  Comp.  L.,  §§  5778-9, 

2Whitcomb  v.  Reid,  31  Miss.  567;  5784;  Fore  v.  Fore's  Est.  (N.  D.).  50 

Edwards    v.    McGee,    27    Miss.    92;  N.  W.  712;  Rank  v.  Freeman,  1  N. 

Lowry  v.  Herbert,  25  Miss.  101.  D. ,  46  N.  W.   36.     See  Mann  v. 

» Davenport  v.  Brooks,  92  Ala.  627 ;  Welton,  21  Neb.  541. 

9  So.  153.  J  Barnum  v.  Boughton,  55  Ct  117. 

*Ex  parte  Reavis,    50   Ala.   210;  SHettrick  v.  Hettrick.  55  Pa.  St 

Carter  v.  Hinkle,  13  Ala.   529 ;  Ala.  292 ;  Spier's  Appeal,  26  Pa.  St  234. 

Act  of  1872.  9  Ordiorne's  Appeal,  54  Pa.  St  175 ; 

s  Lyman  v.  Byam,  38  Pa.  St  475,  Dillinger's  Appeal,  35  Pa.  St  357. 

10  Terry's  Appeal,  55  Pa,  St  344 


790  EXEMPTION    OF    PERSONALTY. 

When  chattel  exemption  is  given  to  a  widow  and  orphan 
children,  as  such,  it  is  not  meant  to  inure  to  the  benefit  of  her 
second  husband.^ 

If  a  widow  is  entitled  to  a  specific  sura  from  her  husband's 
estate,  exempt  from  liability  for  his  debts,  she  must  claim  the 
right  and  claim  it  in  due  time.  Three  years'  neglect  has  been 
held  fatal  to  her  privilege.  If,  by  direct  waiver  (or  by  such 
laches  as  will  be  equivalent  to  it),  the  widow  gives  up  her 
exemption,  her  executor  cannot  claim  it  for  her  after  her 
death.2 

A  widow  having  claimed  exemption  from  her  deceased  hus- 
band's estate  in  due  time  should  not  have  the  neglect  of  the 
proper  officer  imputed  to  her.  She  is  guilty  of  no  laches ;  so, 
a  second  appraisement  of  the  estate  may  be  made  as  late  as 
three  years  after  the  death  of  the  decedent,  when  no  interests 
have  intervened  to  be  affected  by  it.  Confirmation  of  the  ap- 
praisement, under  such  circumstances,  may  be  made  nunc  pro 

iTenn.  Code  (M.  Sc  V.),  §  3128;  2Machemer's  Estate,  140  Pa,  St. 
(T.  &S.),  §  2288;  Sneed  u  Jenkins,  90  544;  Kerns'  Appeal,  120  Pa.  St.  523. 
Tenn.  137.  .    -  Williams'  Estate,  141  Pa.  St.  436. 

*For  further  as  to  chattel  exemption  to  widows  in  Alabama,  see  gener- 
ally. Chandler  v.  Chandler,  87  Ala.  300;  Little  v.  McPherson,  76  Ala.  552, 
Ex  parte  Pearson,  76  Ala.  521 ;  Mitcham  v.  Moore,  73  Ala.  54;  Henderson's 
Adm'r  v.  Tucker,  70  Ala,  381 ;  Hunter  v.  Law,  68  Ala.  365 ;  Darden  v.  Reese, 
63  Ala.  34. 


CHAPTER  XXV. 

THINGS  EXEMPT. 


1.  Household  Goods. 

2.  Furniture  of  Hotels,  Boarding- 

houses,  etc. 

3.  Clothing,  etc.  Worn  on  the  Per- 

son. 

4.  Tools  of  Mechanics  and  Others. 

5.  Machinery. 

6.  Printing  Presses,  Types  and  Ma- 

terial. 

7.  Wagons  and  Other  Vehicles. 


§  8.  Domestic  Animals. 
9.  Things    Needed     in    Business; 
Stock  in  Trade. 

10.  Merchants'  Stock  in  Trade. 

11.  Crops  and  ProvisioiJb. 

12.  Books,  Pictures,  Musical  Instru- 

ments, etc.,  Outfits  of  Fisher- 
men and  Miners,  etc.,  Specially 
Exempted. 


§  1.  Household  Goods. 

Necessary  articles:  The  furniture  necessary  to  family  com- 
fort is  exempted  to  some  extent  in  every  state.  Articles  are 
specified  as  exempt,  or  goods  to  a  stated  value  made  exempti- 
ble,  by  different  statutes  with  varying  liberality.  Such  things 
as  beds  and  bedding,  tables,  chairs,  stoves  and  kitchen  utensils 
are  everywhere  necessary :  so,  when  a  statute  exempts  "  fur- 
niture necessary  for  the  debtor  and  his  family,"  such  articles 
are  always  understood.  There  may  be  a  question  as  to  the 
number  of  such  articles  to  be  allowed  as  necessary ;  and  also 
Avhether  carpets,  curtains  and  other  things  not  absolutely  es- 
sential to  sustenance  are  included  in  the  exemption  of  merely 
necessary  household  goods ;  but  the  legislator,  when  not  speci- 
fying the  articles,  doubtless  means  to  protect  from  forced  sale 
the  usual  furniture  of  all  housekeepers  whether  essential  or 
only  conducing  to  comfort.  Ordinarily,  the  provision  is  not 
made  in  detail,  but  is  meant  to  embrace  any  proper  outfit  of 
a  dwelling-house  to  meet  the  needs  and  conveniences  of  a 
family. 

In  some  states  the  exempted  articles  are  specified  minutely ;  * 

1  New  York  Code,  §  1390  (5) :  •' utensils,   one   table,   six   chairs,   six 

beds,  bedsteads  and  bedding  neces-  knives,   six    forks,    six    spoons,   six 

sary  for  the  judgment  debtor  and  plates,  six  tea-cups,  six  saucers,  one 

the    family,    all    necessary  cooking  sugar  dish,  one  milk  pot,  one  tea  pot, 


793  THINGS    EXEMPT. 

while  in  most  of  the  others,  there  are  a  few  specific  exemp- 
tions and  then  a  general  clause  allowing  the  debtor  to  select 
up  to  a  given  sum.  This  sum  varies  greatly  in  the  several 
states. 

Notwithstanding  the  general  plainness  of  most  of  the  pro- 
visions, there  is  room  for  explanation  in  some  of  them.^  Where 
strictness  is  applied  in  construing  the  word  necessary  as  it  oc- 
curs in  statutes  relative  to  household  and  kitchen  furniture, 
articles  of  mere  convenience,  however  useful,  have  been  sub- 
jected to  execution.  Articles  not  coming  under  the  designa- 
tion of  furniture,  though  commonly  found  in  every  dwelling- 
house,  are  not  included  in  the  exemption  of  household  goods. 

When  the  exemption  is  specific,  the  articles  specified  in  the 
statute  (as  three  beds,  twelve  chairs,  two  bureaus,  etc.)  are 
not  dependent  upon  their  value,  whether  they  be  costly  or 
cheap;  but  when  there  is  monetary  limitation  only  (as  house- 
hold goods  to  the  value  of  one  hundred  or  one  thousand"  dol- 
lars), the  householder  may  select  many  articles  or  few  —  even 
one  piece  of  furniture  worth  the  maximum  —  but  must  keep 
within  the  restriction. 

Articles  of  convenience:  The  statutes  do  not  all  require  that 
the  protected  furniture  must  be  necessary  to  family  use.  It 
has  been  held  that  when  a  debtor's  household  effects  are  worth 
no  more  than  the  exemption  maximum,  and  he  is  the  head  of 
a  family,  they  cannot  be  attached  whether  they  be  essential 
to  family  use  and  comfort  or  not ;  so,  when  the  household 
goods  were  used  to  furnish  a  hotel  kept  by  the  householder, 
they  were  held  exempt.- 

Not  only  when  execution  is  pending,  but  at  all  times  the 
householder  is  privileged  to  hold  the  exempted  amount  free 
from  liability ;  and  it  has  been  held  that  where  he  had  had  a 
thousand  dollars'  worth  of  personalty  set  off  to  him,  under 

one  crane  and  its  appendages,  one  Alsup  v.  Jordan,  69  Tex.  300 ;  Davlin 
pair  of  andirons,  one  coal  scuttle,  v.  Stone,  4  Gush.  359 ;  Copp  v.  Will- 
one  pair  of  tongs,  one  lamp  and  one  iams,  135  Mass.  401 ;  Hitchcock  y. 
candlestick."  The  household  and  Holmes,  43  Ct.  528 ;  Seely  v.  Gwillini, 
kitchen  exemptions  of  Kentucky,  40  Ct.  293 ;  Van  Sickler  v.  Jacobs,  14 
Tennessee,  Virginia  and  some  other  Johns.  434. 

states  are  also  quite  minute.  2  Rasure   v.    Hart,    18    Kan.    340 ; 

» Campbell  v.  White,  95  N.  C.  344;  Mannan  v.  Merritt,  11  Allen  (Mass.), 

Vanderhorst  v.  Bacon,  38  Mich.  669 ;  583. 


FUKNITUKE    OF    HOTELS,  BOARDING-HOUSES,  ETC.  793 

the  govcrnino-  statute,  he  was  yet  privileged  to  claim  again 
when  that  allowance  had  been  consumed  or  paid  away  for 
debt  under  judicial  process  or  otherwise,  or  exhausted  in  the 
su])port  of  his  family,  or  had  been  lost  in  any  way  without 
his  fault.' 

Ornamental  articles:  The  phrase  "  household  and  kitchen 
furniture"  is  not  uarrowly  understood.  It  is  not  everywhere 
confined  to  articles  of  necessity,  but  instruments  of  music, 
ornamental  furniture,^  statues  and  pictures,^  have  been  in- 
cluded. This  latitude  of  rendering  has  not  been  universal, 
however.'*  It  cannot  be  laid  down  as  a  rule,  in  the  abserce  of 
statutory  enactment,  that  all  articles  of  taste  and  vertu  suall 
be  saved  from  the  official  auctioneer's  hammer.  It  would  not 
do  to  allow  a  debtor,  in  insolvent  circumstances,  to  invest  all 
he  has  in  a  painting  by  one  of  the  old  masters.  It  would  not 
accord  with  justice  to  his  creditors,  to  allow  him  to  keep  such 
an  article  of  great  value,  though  he  had  acquired  it  when  in 
affluent  circumstances.  "Whatever  deference  v;e  pay  to  his 
rank  in  life  and  the  high  social  status  of  his  family,  we  must 
not  carr^^  it  to  the  point  of  injustice  to  others.  The  creditor 
may  have  rank  and  station  to  support  as  well  as  the  debtor. 

To  a  reasonable  extent  (whatever  that  may  mean),  pictures, 
musical  instruments,  books  and  various  refined  and  elegant 
things  are  necessary  to  the  well-being  of  some  families ;  but, 
whether  such  property  can  honestly  be  saved  to  them  as 
household  furniture  must  depend  upon  the  letter  and  si)irit  of 
the  governing  statute. 

§  2.  Furniture  of  Hotels,  Boarding-houses,  etc. 

Usually  it  is  the  furniture  of  a  dwelling-house  occupied  by 
a  family  as  its  home  and  owned  by  the  head  of  the   family 

iWeis  V.Levy,  69  Ala.  209;  Ala.  3 The  words   houscJwkl  fvrniture 

Confeiejice  V.  Vaughan,  54  Ala.  443;  were  treated  as   iucluding  pictures, 

Campbell  v.  White,  95  N.  C.  344 ;  Cit-  statues  aud  bronzes,  when  employed 

izens'  Bank  v.  Green,  78  N.  C.  247.  in   a  will.     Richardson  v.  Hall,  124 

2  In  Texas,  household  and  kitchen  Mass.  237. 
furniture  is  exempted  regardless  of  *  A  piano  was  held  to  be  not  exempt 
value,  and  it  may  include  a  piano  in  Wisconsin,  because  not  used  for  a 
aud  ornamental  articles.  Alsup  v.  livelihood.  Tanner  v.  Billings,  18 
Jordan,  69  Tex.  300 ;  Tex.  Rev.  Stat,  Wis.  175.  So  also  in  Vermont  Dun- 
art  2335.  lap  V.  Edgerton,  30  Vt  224.     But  a 


794  THINGS    EXEMPT. 

which  the  law  exempts;  yet  a  boarding-house,  being  kept  by 
a  widow  with  children,  has  had  its  furniture  declared  exempt, 
including  that  of  the  boarders'  rooms.'  But,  in  the  same  ju- 
risdiction where  this  was  held,  the  furniture  of  a  restaurant 
kept  by  the  head  of  a  family  was  liable  to  attachment.'  The 
costly  outfit  of  a  large  hotel  not  kept  by  the  owner  and  not 
occupied  by  his  family  would  certainly  be  liable  to  attach- 
ment and  execution;  and  that  of  any  hotel  or  restaurant 
Avhich  is  conducted  for  profit  by  the  ovvner  or  his  tenant,  when 
it  is  not  the  family  home  of  the  claimant,  would  be  liable ;  * 
and  if  occupied  by  his  family  while  the  business  of  entertain- 
ing for  profit  is  the  principal  use,  the  furniture  would  be  liable 
in  most  states.  But  it  has  been  held  in  other  jurisdictions 
that  a  boarding-house  keeper  is  entitled  to  the  exemption  of 
household  goods  just  as  the  head  of  a  private  family  is  allowed 
it,  even  though  the  business  of  keeping  boarders  has  been 
abandoned,^  or  the  furniture  of  a  family  is  stored  for  future 
use.'^  An  outfit,  consisting  of  the  various  articles  necessary  to 
such  business  in  excess  of  the  needs  of  a  private  family,  would 
not  be  protected  in  most  of  the  states  where  the  exemption  is 
that  of  household  furniture  owned  by  the  head  of  a  family. 
It  would  be  required,  in  most  of  them,  that  the  claimant  show 
some  statutory  authorization,  other  than  this,  to  sustain  his 
claim  to  his  business  furnishings.  When,  however,  the  stat- 
ute exempts  household  and  kitchen  furniture  to  a  stated  value, 
it  would  seem  a  matter  of  indifference  whether  the  goods  be 
used  by  a  private  family  or  by  boarders.  The  limitation  pre- 
vents any  abuse  of  the  privilege. 

Where  the  money  limit  is  the  only  check  upon  the  exemp- 
tion, it  makes  no  difi'erence  whether  the  household  and 
kitchen  furniture  be  used  in  a  private  or  a  public  house ;  but 
articles  which  do  not  answer  the  statutory  description  of 
"  household  goods,"  "  kitchen  furniture,"  "  cooking  utensils," 

brass  clock  was  exempt.     Leavitt  v.  2  Dodge  v.  Knight  (Tex.),  16  S.  W. 

Metcalf,  2  Vt.  342.  See  Hart  v.  Hyde,  626. 

5  Vt.  328,  and  Freeman  v.  Carpenter,  3  Heidenheimer  v.  Blumenkron,  56 

10  Vt,  434.  Tex.  308. 

1  Mueller  v.  Richardson  (Tex.  Sup.).  *  Vanderhorst  v.  Bacon,  38  Mich. 

18  S.  W.  693;  Texas  Rev.  Stat.,  art  669. 

2335 ;  Race  v.  Oldridge,  90  111.  250.  »  Cantrell  v.  Connor,  6  Daly  (N.  Y.), 

224. 


CLOTHING,  ETC.,  WORN    ON    THE    PEUSON.  795 

etc.,  are  not  protected  from  forced  sale  though  within  the 
monetary  hmitation.  A  pool  table,  for  instance,  is  not  to  be 
classed  with  such  articles;  and  it  has  been  held  not  a  neces- 
sary adjunct  to  a  saloon.'  A  trunk,  a  jewel  box,  and  the  like, 
are  not  articles  of  household  furniture.^ 

§  3.  Clothing-,  etc..  Worn  on  the  Person. 

Nothing  is  more  generally  exempted  from  execution  than 
the  clothes  of  the  debtor  and  his  family.  What  amount  is 
free  from  liability  is  not  fixed  and  uniform  throughout  the 
states.  The  common-law  limitation,  to  the  clothes  actually 
worn  by  the  debtor  and  his  family  at  the  time  of  the  levy,' 
does  not  now  prevail.  The  clothing  recpiisite  for  different 
kinds  of  weather,  different  seasons  of  the  year,  work  days  and 
holidays ;  for  presentable  a])pearance  as  well  as  for  comfort 
and  decency,  used  by  the  debtor  and  the  members  of  his  fam- 
ily, is  now  generally  exem])t.^ 

In  the  absence  of  restriction,  men  may  have  their  heavy 
and  light  overcoats,  their  business  and  dress  suits ;  women 
may  have  extensive  wardrobes,  brides  their  elegant  and  varie- 
gated trousseaux  I  any  one  may  wear  and  keep  for  wearing 
what  the  exigencies  of  the  society  in  which  he  moves  may  re- 
quire. Clothing  which  is  laid  away  in  bureaus,  wardrobes  or 
trunks,  if  worn  from  time  to  time,  is  not  liable  under  most  of 
the  statutes.'^ 

It  would  be  proper  to  inquire  whether  clothing  of  unusual 
quantity  and  of  costly  quality  is  worn  as  apparel,  in  good  faith, 
or  was  purchased  to  defeat  creditors.  Here  the  true  equi- 
table distinction  is  suggested.  If  a  debtor  should  attempt  to 
keep  a  wardrobe  equal  to  that  of  the  late  Empress  of  France, 
she  would  doubtless  find  herself  beyond  the  bounds  of  judi- 
cial toleration;  for,  though  there  be  no   express  statutory 

1  Goozeu  V.  Phillips,  49  Mich.  7.  Deposit  Bank  v.  Wickhara,  44  How. 

2  Towns  V.  Pratt,  33  N,  H.  345.  431;  Smith  v.  Rogers,   16   Ga.    479; 

3  Sunbolf  V.  Alford,  3  M.  &  W.  248 ;  Rothschild  v.  Boelter,  18  Minn.  361. 
Wolff  V.   Summers,   2    Camp.   631 ;        5  The  case  of  Towns  v.  Pratt.  33 
Bumpus  V.  Maynard,  38  Barb.  626 ;  N.  H.  345,  holding  a  trunk  of  clothes 
Bowue  V.  Witt,  19  Wend.  475;  Cooke  liable,    would   not    be    respected    as 
V.  Gibbs,  3  Mass.  193.  precedent  everywhere.    In  Alabama, 

■»  Frazier  v.  Barnum,  19  N.  J.  Eq.  the  wearing  apparel  of  a  deceased 
olfi  :  Peverly  v.  Sayles,  10  N.  H.  856;    householder  is  exempt  by  statute. 


796  THINGS   EXEMPT. 

limitation,  the  spirit  of  the  exemption  provision  would  doubt- 
less be  invoked.  If  the  object  of  the  debtor,  in  providing  such 
an  extensive  and  extravagant  outfit,  is  to  defeat  creditors,  ex- 
emption may  be  denied  on  the  ground  of  fraud. 

Not  only  clothing,  but  watches,  spectacles,  canes,  umbrellas, 
pocket-knives,  purses,  pocket-books,  and  similar  articles  habit- 
ually used  and  carried  about  the  person,  may  be  exempt  under 
unrestricted  and  general  designations.  Watches,  at  common 
law,  could  not  be  taken  in  execution  from  the  wearers,^  but 
they,  as  well  as  rings  and  jewels  worn  upon  the  person,  have 
not  invariably  been  held  exempt.^  Manifestly,  the  indiscrim- 
inate exemption  of  articles  personally  worn  might  lead  to 
great  abuse.  While  a  watch  and  chain  and  a  pair  of  spec- 
tacles may  be  both  useful  and  ornamental,  and  properly  ex- 
empt, there  certainly  is  a  limit  (by  the  spirit  of  the  exemption 
laws,  at  least)  to  unusual  and  extravagant  adornment.  A 
watch,  when  it  is  the  mere  setting  of  costly  jewels;  a  Unger- 
ring  supporting  a  diamond,  worth  a  fortune;  any  ornament 
employed  as  a  mere  holder  of  something  more  valuable  than 
itself,  may  serve  as  illustration.  Whether  jewels  worn  on  the 
person  are  exem]:)t  may  depend  upon  circumstances.  If  they 
have  been  worn  habitually  by  their  owner  when  he  was  not 
indebted,  they  would  be  entitled  to  more  favor  at  a  time  of 
his  misfortune  than  they  would  if  he  has  bought  them,  after 
becoming  embarrassed,  for  the  purpose  of  defeating  creditors. 

§  4.  Tools  of  Mechanics  and  Others. 

Perhaps,  after  household  goods  and  apparel,  there  is  noth- 
ing more  generally  exempt  throughout  the  Union  than  tools. 
They  are  readily  understood  to  be  the  implements  by  which 
a  workman  Avorks,  whether  he  be  a  farmer  or  a  mechanic. 
They  are  instruments  with  which  their  owners  pursue  a  call- 
ing to  make  a  livelihood.  There  would  seem  at  first  view  to 
be  no  latitude  for  construction  as  to  the  meaning  of  the 
simple  word.  Yet,  as  employed  in  the  numerous  exemption 
statutes  in  various  connections,  with  reference  to  different 
avocations,  there  have  been  many  decisions  upon  questions 

1  Frazier  v.  Barnum,  supra.  See   Commercial    Bank    v.    McLeod, 

2  Shaw    V.    Davis,    55    Barb.    389;     65  la  665;  51  Am.  Rep.  36. 
Sawyer   v.   Heirs,   etc.,   28   Vt   249. 


TOOLS    OF    MECHANICS    AND    OTHERS. 


797 


as  to  whether  tlic  articles  chiimcd  by  debtors  as  tools  were 
really  such  within  the  letter  and  intendment  of  the  law.  The 
decisions,  not  always  harmonious  as  a  whole,  may  be  given 
as  expressing  the  law,  each  for  its  own  state.' 

The  avocation  of  the  owner,  and  the  use  to  which  a  thing 
may  be  put,  sometimes  determines  the  character  of  the  article 
and  its  right  to  exemption  as  a  tool.  The  article  may  not  be 
(like  a  plow,  a  saw  or  a  hammer)  a  tool  under  all  circum- 
stances, 3^et  it  may  be  held  such  under  the  provisions  of  tlie 
statute.  Ordinarily,  a  carriage,  a  sleigli,  a  horse,  is  not  a  tool, 
but  when  owned  and  used  by  one  Avhose  calling  requires  it, 
each  of  these  has  been  given  the  benefit  of  the  provision  ex- 
empting the  tools  by  which  the  debtor  gains  his  livelihood.^ 

On  the  other  hand,  when  specified  implements  are  exempt 
without  reference  to  their  owner,  they  are  protected  in  the 
hands  of  persons  who  do  not  use  them.  Thus  a  "  mower  '' 
was  held  exempt,  though  the  owner  was  not  a  farmer.' 

The  implements  of  a  farmer  or  an  artisan  do  not  lose  their 
exempt  character  because  he  is  temporarily  out  of  work,  and 


1  Richards  v.  Hubbard,  59  N.  H. 
158;  47  Am.  Eep.  188;  Gen.  Laws 
of  N.  H.,  ch.  224,  §  2.  In  this  case 
there  is  the  following  summary  of 
things,  all  held  exempt  as  tools, 
though  some  are  household  furni- 
ture and  not  tools:  A  milliner's 
clock  and  stove.  Woods  v.  Keyes, 
14  Allen,  236.  A  sewing  machine. 
Rayner  v.  Whicher,  6  Allen,  292.  A 
musician's  cornet.  Baker  v.  "Willis, 
123  Mass.  194.  A  fisherman's  net 
and  bolt.  Sammis  v.  Smith,  1  N.  Y. 
Sup.  444.  A  copper  kettle.  Van 
Sickler  v.  Jacobs,  14  Johns.  434.  A 
watch.  Bitting  v.  Vandenburgh,  17 
How.  Pr.  80.  To  tiiis  summary 
many  other  things  might  be  added. 
A  grindstone  was  pi'operly  exempted 
as  a  tool.  White  v.  Capron,  52  Vt. 
634.  The  lamp  of  a  watchmaker. 
Bequillard  v.  Bartlett,  19  Kan.  382. 
The  piano  of  a  musician.  Amend  v. 
Murphy,  69  111.  337. 

'■^Though  a  debtor's  carriage  was 


held  exempt  as  a  "  tool "  (Richard  v. 
Hubbard,  supra),  that  of  a  non-pro- 
fessional person,  used  for  convey- 
ance, was  held  liable  by  the  same 
court.  Parshley  v.  Green,  58  N.  H. 
271 ;  Gen.  Stat.  N.  H.,  ch.  205,  ^5  2.  A 
horse  and  wagon  held  to  be  mechan- 
ic's tools.  Perkins  v.  Wisner,  9  la. 
820.  Contra,  Wallace  v.  Collins,  5 
Ark.  41.  A  sled  for  drawing  wood 
to  market  was  held  exempt  as  a  tool. 
Jb.  A  hotel  omnibus  was  exempted  as 
a  "  tool "  of  the  hotel-keeper.  White 
V.  Gemeny  (Kan.),  28  P.  1011 ;  Wilhite 
v.  W^illiams,  41  Kan.  288;  Davidson 
V.  Scchrist,  28  Kan.  324.  A  whip  not 
exempt.  Savage  v.  Davis,  134  Mass. 
401.  A  mill-saw  not  a  tool.  Batch- 
elder  V.  Shapleigh,  10  Me.  135.  A 
grain-drill  was  not  exempt  to  a  hotel- 
keeper.  Reed  v.  Cooper,  30  Kan. 
574. 

*  Humphrey  v.  Taylor,  45  Wis.  251 ; 
Knapp  v.  Bartlett,  23  Wis.  68. 


798  THINGS    EXEMPT. 

they  consequently  idle.  A  farmer's  ploughs  and  harrows  are 
laid  hy  half  the  year;  a  mechanic's  tools  may  be  rusting  in 
his  chest  while  he  is  waiting  for  a  job ;  a  farmer,  artisan  or 
any  other  worker  may  choose  not  to  work  for  a  period,  yet 
his  tools  will  remain  exempt,  since  he  has  not  abandoned  his 
calling.^ 

If  a  mechanic's  tool  or  agricultural  implement,  or  the  like, 
is  owned  and  possessed  by  one  who  has  no  use  for  it  in  his 
calling  —  a  calling  altogether  different  from  that  in  which  the 
tool  is  meant  to  be  employed  —  it  is  not  exempt  as  a  tool; 
and,  in  the  hands  of  his  widow,  it  would  not  be  exempt.^ 

When,  in  one  section  of  an  act,  certain  kinds  of  property, 
such  as  the  tools  of  a  mechanic,  are  exempted,  while  in  an- 
other section  certain  property  belonging  to  a  family  man  is 
exempted,  the  two  provisions  were  held  cumulative,  so  that 
the  tools  could  be  held,  and  the  other  things  too,  by  the  me- 
chanic married  and  having  a  family.'  The  -words  of  a  statute 
are  usually  employed  in  their  ordinary  sense ;  so  the  tools  of 
a  mechanic  are  those  of  a  working  artisan  used  by  his  own 
hands  in  plying  his  calling.'*  Articles  claimed  as  exempt  may 
be  tools,  yet  not  the  "  tools  of  a  mechanic."  A  photographer's 
instruments  were  held  not  exempt  on  the  ground  that  he  was 
not  a  mechanic  and  that  they  were  not  mechanic's  tools;  ^  but 
dental  instruments  have  been  exempted  as  tools  of  the  oper- 
ator.*    The  dentist  is  a  professional  man  as  much  as  a  pho- 

1  Caswell  V.  Keith,  12  Gray,  351;  p.  265.  Exemption  of  tools  of  trade  do 
Dailey  v.  May,  5  Mass.  313;  Pierce  not  allow  a  mechanic,  who  has  two 
V.  Gray,  7  Gray,  68;  Hickman  v.  trades,  to  claim  cumulatively.  Smal- 
Cruise,  72  la.  528 ;  Wilkinson  v.  Al-  ley  v.  Masten,  8  Mich.  529 ;  Bevitt  v. 
ley,  45  N.  H.  551 ;  Harris  v.  Haynes,  Crandall,  19  Wis.  610;  Morrill  v.  Sey- 
30  Mich.  140;  Kenyou  v.  Baker,  16  mour,  3  Mich.  64.  CoJi^ra;  Harrison 
Mich.  873 ;  Wood  v.  Bresnahan,  v.  Martin,  7  Mo.  286 ;  Howard  v.  Will- 
supra.    Compare  Willis  v.  Morris,  66  lams,  2  Pick.  80. 

Tex.  628.  *  Parkerson  v.  Wightman,  4  Strob. 

2  Reed  v.  Cooper,  30  Kan.  574;  Jen-  (S.  C.)  363 ;  Willis  v.  Morris,  66  Tex. 
kins  V.  McNall,  27  Kan.  532 ;  Gordon  269 ;  Abercrombie  v.  Alderson,  9  Ala. 
V.   Shields,   7  Kan.   320;    Robert  v.  981. 

Adams.  38  Cal.  382;  Knapp  v.  Bart-  »  Story  v.  Walker,  11  Lea,  515;  47 

lett,  23  Wis.  68.    Compare  Humphrey  Am.    Rep.    305;   Tenn.    Rev.    Code, 

V,  Taylor,  45  Wis.  251.  §  553a  (29). 

3  Harrison  v.  Martin,  7  Mo.  287,  un-  «  Maxon  v.  Perrott,  17  Mich.  336. 
der    the    old  act    of  R.  S.  of  1835, 


TOOLS    OF   MECHANICS    AND   OTHERS.  799 

tograpber  is  an  artist;  and,  on  tlio  ground  that  he  is  not  a 
mechanic,  exemption  of  his  dental  instruments  has  been  de- 
nied.^ Both  callings  are  somewhat  mechanical,  and  it  should 
be  remembered,  in  the  construction  of  statutes  exempting  the 
"tools  of  a  mechanic,"  that  there  is  not  always  a  distinct  line 
of  separation  between  a  profession  and  a  manual  art.  No  one 
"would  rank  a  surgeon  as  a  mechanic,  yet  his  instruments  and 
their  application  may  be  readily  classified  with  dental  tools 
and  their  use;  and  wliether  either  are  exempt  depends,  of 
course,  upon  the  terms  of  the  statute  in  any  case.  Formerly 
some  barbers  used  to  add  tooth-drawing,  cupping  and  bleed- 
ing to  shaving  and  hair-cutting;  but  as  they  had  no  profes- 
sional knowledge,  no  one  thought  of  calling  them  dental  sur- 
geons or  doctors.  Yet  the  professional  dentist's  plate-making 
and  tootii-iilling  and  extracting  is  not  the  less  mechanical  be- 
cause more  scientific;  for  many  purely  mechanical  operations 
depend  upon  knowledge  of  science.  So,  though  the  profes- 
sionally educated  dentist  should  be  ranked  as  a  surgeon,  there 
are  others  little  more  entitled  to  that  rank  than  the  man  who 
works  with  both  razor  and  forceps. 

A  contractor  by  profession,  building  houses  or  ships,  is  not 
deemed  a  mechanic  whose  tools  are  exempt  when  acting  in 
his  capacity  of  contractor,  though  he  really  may  be  a  mechanic.- 
If  exemption  is  with  reference  to  a  particular  avocation,  the 
claimant  must  be  pursuing  it  at  the  time  of  the  levy." 

Instruments  may  be  habitually  used  in  connection  with  an 
avocation,  yet  not  be  necessary  to  its  conduct.* 

Office  furniture  is  necessary,  and  it  has  been  included  in  the 
terms  "  tools  and  instruments  "  necessary  to  the  carrying  on 
of  a  lawyer's  profession,  so  that  his  landlord  could  not  attach 
it.^  This  liberal  inclusion  would  not  be  extended  to  the  tak- 
ing-in  of  the  office  or  building  in  which  a  profession  is  prac- 
ticed or  a  trade  exercised  (however  necessary  it  might  be  to 

1  Whitcomb  v.  Reid,  31  Miss.  567.  Midi.  7.     See  Maxon  v.  Perrott,  17 

2i2e  Wetmore,  Deady,  585.  Mich.  333. 

8  Ray  V.  Hayes,  28  La.  Ann.  641.  &  Abraham    v.   Davenport,   78    la. 

<Pool  tables,  for  instance,  are  not  lU;  la.   Code,  §  3072.     Contra:  Re 

essential  to  the  saloon  or  restaurant  Church,  15  R.  I.  245 ;  Pub.  Stat.  R  I., 

business.     Goozen    v.    Philhps,    49  ch.  209,  §  4. 


800  THINGS    EXEMPT. 

the  prosecution  of  the  business)  though  the  shop,  office  or 
building  be  personal  property.^ 

"Wliere  the  statute  broadly  exempts  all  instruments  neces- 
sary  to  the  conduct  of  one's  business,  without  confining  the 
benefit  to  any  particular  calling,  not  only  the  office  furniture 
but  the  business  papers  of  an  insurance  agent  were  held  to  be 
instruments.^ 

While  a  law  library  is  necessary  to  the  lawj^er's  business, 
and  may  be  exempt  on  other  grounds,  the  books  cannot  be 
on  the  assumption  that  they  are  "  tools,"  under  a  statute  ex- 
empting chattels  by  that  designation  merely.'  So,  a  merchant's 
usual  articles  of  outfit  are  not  tools;  *  yet  an  article,  proven 
to  be  necessary  to  a  particular  calling  which  united  both  the 
mercantile  and  mechanical  character,  was  protected  from  ex- 
ecution.^ Stamping  blocks  for  printing  oil-cloth  were  held  to 
be  not  "  necessary  tools  of  a  tradesman."  ^  Doubtless  the}' 
were  tools  which  would  have  been  exempt  if  owned  and  used 
by  one  whose  calling  w^as  that  of  an  oil-cloth  printer  or  stamper. 
There  is  the  case  of  a  hardware  dealer  who,  upon  making  an 
assignment,  was  allowed  to  retain  a  set  of  tinner's  tools  and 
material  from  his  general  stock  in  trade.  They  certainly  were 
not  necessary  to  the  hardware  business,  and  were  not  exempt 
as  so;  but,  the  assignor  having  proved  that  he  was  using  such 
instruments  and  maintaining  his  family  with  them  since  his 
embarrassment,  and  that  they  were  his  only  source  of  support, 
was  allow^ed  to  hold  them  exempt.^ 

1  Holden  v.  Stranahan,  48  la.  70 ;  "  tools,"  though  they  may  be  as  be- 
la.  Code,  §  3073.  (A  photograplier  longing  to  some  other  class  of  pro- 
claimed his  saloon  building.)  tected    property.     Lenoir  v.  Weeks, 

-In   Kansas,   an   insurance   agent  20   Ga.   596;  Fowler  v.  Gilmore,  30 

and  abstracter  of  titles  successfully  Tex.  432 ;  Brown  v.  Hoff meister,  71 

claimed  not  only  his  office  furniture  Mo.  411. 

andiron  safe  hxit  al^o  his  abstracts  as  *Amerchant'scounter,  desk,  barrels 

"  instruments,"  under  the  statute  ex-  and  boxes  are  not  exempt  as  "  tools." 

empting  "  the  necessary  tools  and  in-  Guptil  v.  McFee,  9  Kan.  30. 

struments  of  any  mechanic,  miner,  ^  A.  jeweler's   safe,    proved  to  be 

or  oif/ier person,  used  and  kept  for  the  necessary  to  his  business,  was  held 

purpose  of  carrying  on  his  trade  or  to    be    exempt.      McManus'    Estate 

business."     Davidson  v.  Sechrist,  28  (Cal.),  25  P.  413 ;  Cal.  Civ.  Code  Proc, 

Kan.    324;    Kan.    Comp.    L.   (1879),  §690(4). 

p.  438.  6  Richie  v.  McCauley,  4  Pa.  St.  471. 

3  Law  books   are    not  exemnt  as  ^  Miller  v.  Weeks,  46  Kan.  307. 


MACHINERY.  801 

The  products  of  mechanical  labor  and  skill,  within  reason- 
able limits,  have  been  protected  from  execution.' 

The  abandonment  of  a  trade  or  profession  is  the  renuncia- 
tion of  any  exemption  right  incident  to,  or  dependent  upon, 
such  avocation.^ 

§  5.  Machinery. 

A  valuable  threshing  machine  with  its  outfit,  owned  by  two 
or  more  farmers,  and  used  by  them  on  their  own  farms  and 
also  used  in  threshing  for  others,  for  hire,  was  held  not  exempt 
under  the  statutory  exemption  of  "farming  utensils  or  imple- 
ments of  husbandry  of  the  judgment  debtor."^  The  imple- 
ments protected  are  those  used  by  the  farmer  in  cultivating 
his  own  farm  and  caring  for  its  products ;  not  those  mainly 
used  to  derive  income  by  renting  them  out.* 

What  value  in  machinery  may  be  exempt,  and  to  what  uses 
the  machinery  must  be  confined,  and  what  class  of  persons 
may  be  beneficiaries  of  the  exemption,  all  depend  upon  the 
statute  governing  the  case ;  and  therefore  cases  on  the  subject 
differ  in  different  states.  Machinery,  used  in  the  sawing  of 
lumber  into  boards  and  the  making  of  shingles,  is  held  to  be 
included  in  the  terms  "  tools,"  "  implements,"  etc.,  used  *'  to 
enable  a  person  to  carry  on  the  profession,  trade,  occupation 
or  business  in  which  he  is  wholly  or  principally  engaged,  not 
exceeding  in  value  $250."  ^  A  part  of  a  complex  machine  may 
be  separated  from  the  rest  (when  the  whole  exceeds  the  allow- 
able exemption  in  value),  if  it  be  susceptible  of  being  worked 
alone  so  as  to  become  exempt.^  A  steam-engine  may  be  ex- 
empt within  the  meaning  of  a  statute  protecting  tools  and  in- 
struments, it  has  been  held.'' 

The  term  tool  is  inapplicable  to  large  establishments,  mills, 
portable  housed  machinery,  steam-engines,  threshing  machines 
and  apparatus,  or  anything  not  understood  as  a  tool  in  com- 
mon parlance,  though  many  tools  may  be  embraced  and  used 

>  Stewart  v.  Welton,  33  Mich.  56.  Griffith,  34  Cal.  302 ;  Ford  v.  John- 

2WilHs    V.   Morris,   66    Tex.    628;  son,  34  Barb.  364;  Meyer  v.  Meyer, 

McDonald  v.  Campbell,  57  Tex.  614 ;  23  la.  375. 

Miller  v.  Menke,  56  Tex.  539.  5  Wood  v.  Bresnahan,  63  Mich.  614 

3  Cal.  Code  Civ.  Proc.  §  690,  par.  3.  «  Ramsey  v.  Barnabee,  88  111.  135. 

*  In  re  Baldwin,  71  Cal.  74 ;  Roberts  '  Wood  v.  Bresnahan,  63  Mich.  614. 
V.  Adams,  38  Cal.  383.     See  Brusie  v. 
51 


802  THINGS    EXEMPT. 

in  milling,  machine-running  and  other  works.  Unless  there  is 
language  in  the  statute  applicable  to  the  case  which  shows 
that  the  legislator  meant  something  diflFercnt  from  the  ordi- 
nary meaning,  his  use  of  the  word  would  not  convey  the  idea 
that  he  meant  to  include  j^ortable  mills,  engines  or  machines, 
such  as  are  above  mentioned.^  Even  though  there  be  no  ques- 
tion as  to  the  terra,  yet  the  tools  of  a  corporation  engaged  in 
a  large  business  requiring  many  hands  have  been  held  not  ex- 
empt within  the  intendment  of  the  legislator.^ 

Articles  which  are  not  specifically  exempt,  but  which  are 
subject  to  selection  by  the  debtor  as  implements  used  or 
necessary  for  the  conduct  of  his  business,  or  as  stock  in  trade, 
have  not  the  exempt  character  in  the  absence  of  selection.'  It 
is  held  that  machinery  is  embraced  in  the  exemption  of  im- 
plements necessary  to  conduct  the  debtor's  business,  when  it 
is  within  the  allowable  value  and  is  duly  selected  and  claimed.* 

§  6.  Printing  Presses,  Types  and  Material. 

Under  the  statutory  exemption  of  tools  necessary  for  ujp- 
holding  life,  a  printing  press,  with  cases  and  types,  was 
claimed  by  the  debtor  as  free  from  execution.  The  court 
thought  the  press  and  the  cases  and  types  were  tools,  but 
whether  they  were  essential  to  the  life  of  the  debtor  was  de- 
clared a  question  for  a  jury.^  But  under  different  statutes, 
such  printing  articles  have  been  held  not  tools.^ 

The  editor  and  publisher  of  a  newspaper  was  engaged  with 
a  partner  in  job  printing,  and  also  in  the  insurance  business. 
He  was  not  a  printer  but  he  used  his  press  and  types,  work- 

^  In  re  Baldwin,  71  Cal.  74 ;  Batch-  and  was  about  to  leave  the  state,  but 

elder  v.  Shapleigh,  10  Me.  135 ;  Smith  being  still  a  resident  the  claim  of  ex- 

V.   Gibbs,   6  Gray,   298 ;    Kilburn  v.  emption  was  allowed.     See  McHugh 

Demming,  2  Vt.  404.  v.  Curtis,  48  Mich.  262 ;  O'Donnell  v, 

2  Boston  Belting  Co.  v.  Ivens,   28  Segar,  25  Mich.  367. 

La.  Ann.  695.  5  Patten  v.  Smith,  4  Ct  450.     See 

^  Behymer  v.   Cook,   5     Colo.   395  same  case  in  5  Ct.  197.     Jenkins  v. 

(coffins     and     undertaker's     imple-  McNall,  27  Kan.  532;  41  Am.   Rep. 

raents).  422 ;  Sallee  v.  Waters,  17  Ala.  482. 

*  Wood  V.  Bresnahan,  63  Mich.  614  ^  Buckingham  v.  Billings,  18  Mass. 

(machinery     for     shingle    making);  82;  Danforth  v.  Woodward,  27  Mass. 

Howell's  Stat.  Mich.,  §  7686.     In  this  423;  Frantz  v.  Dobson,  64  Misa.  631 ; 

case,   the  debtor  claiming  the   ma-  Spooner  v.  Fletcher,  3  Vt  133. 
chinery  had  quit  business  in  Michigan 


WAGONS    AND    OTITER    VEHICLES.  803 

ing  himself  but  mostly  through  others  —  yet  he  was  allowed 
to  claim  them  as  his  exempt  tools.^ 

It  was  held  that  the  press,  type  and  rnairnal^  belonging  to 
a  printing  office,  were  exempt  under  a  statute  exemi)ting  "all 
tools,  apparatus  and  books  belonging  to  any  trade  or  profes- 
sion," though  they  were  partnership  property.'-  It  does  not 
seem  clear  how  materials,  such  as  paper,  ink  and  like  things 
to  be  worked  up,  can  be  classed  under  the  head  of  "  tools,"  or 
''  apparatus  "  or  "  books." 

In  an  earlier  case  it  was  held,  under  the  same  statute,  that 
a  printing  press,  types,  etc.,  were  exempt  when  owned  by  the 
editor  and  publisher  of  a  newspaper.^  It  will  be  noticed  that, 
in  the  later  case,  such  articles  were  exempted  though  belong- 
ing to  a  firm.  In  some  states,  printing  presses  and  necessary 
accompaniments  are  expressly  exempted  by  statute.* 

§  7.  Wagons  and  Other  Vehicles. 

Whether  or  not  the  exemption  of  a  wagon  includes  that  of 
a  buggy,  family  carriage,  barouche  or  other  vehicle  used  for 
pleasure  or  convenience,  depends  upon  the  connection  of  the 
word  wagon  with  other  words,  and  the  general  tenor  of  the 
statutory  provision.  If,  in  the  enumeration  of  agricultural 
implements,  the  legislator  should  provide  that  ploughs,  har- 
rows, carts,  wagons,  shovels,  boes,  etc.,  shall  be  exempt,  no 
casual  reader  would  understand  that  a  buggy  was  meant  by 
the  word  wagori;  he  would  think  that  a  farm  wagon  was 
meant.  What  the  casual  reader  would  understand  is  likely 
to  be  the  real  meaning.' 

1  Bliss  V.  Vedder,  34  Kan.  57 ;  55  exempt   where  the  statute  exempts 
Am.  Rep.   237 :  Raynor  v.  Whicher,  waojons,  because,  in  a  sense,  it  is  a 
88  Mass.  292  ;  Howard  v.  WilHams,  19  wagon.    Allen  v.  Coates.  29  Minn.  46. 
Mass.  80.  {See  many  cases,  cited  by  counsel,  to 
2Type  Foundry  Co.  v.  Live  Stock,  the  contrary.)    Kimball  v.  Jones,  41 
etc.  Co.,  74  Tex.  651.  Minn.    818.     Compare   Dingman    v. 
3  Green  V.  Raymond,  58  Tex.  80;  44  Raymond,  27  Minn.  507.     A  debtor 
Am.  Rep.  601.  had   two   wagons   for  hauling  pur- 
lin Michigan  a  printing  press  and  poses,  and  a  buggy,  and  he  was  al- 
types  are  exempt  to   the  value  of  lowed    to  select    any  of    the    three 
$2,000;  and  printer's  stock-in-trade  to  ivagons.     Parker  v.  Haley,  60  la.  325. 
more.      In  Mississippi,  printing  See,   as   to  pliysiciau's    buggy   as  a 


material  is  exempt  to  $250.  wagon,  Corp  v.  Griswold,  27  la.  379; 

•^  It  has  been  held  that  a  buggy  is    Farner  v.  Turner,  1  la.  03 ;  Nichols  v. 


804  THINGS    EXEMPT. 

A  statute  exempted  "  one  cart  or  truck-wagon/'  A  ped- 
dler had  a  vehicle  on  four  wheels,  with  a  dasher  in  front,  rail- 
ing round  the  top,  doors  on  each  side  and  drawers  behind. 
To  assist  the  court  in  the  construction  of  the  words  "  cart  or 
truck-wagon,"  the  plaintiff's  counsel  derived  truck-wagon  or 
rather  trucJc,  from  the  French,  and  the  defendant's  counsel 
got  it  from  the  Greek,  while  both  appealed  to  Webster.  The 
court,  however,  looked  at  the  associated  articles  exempt  by 
the  statute :  oxen,  horses,  mules,  ox  sled  or  horse  sled,  a  cart 
or  truck-wagon-  and  said  that  the  vehicles  were  " intended  to 
correspond  with  the  animals  used,  and  all  designed  as  aids  to 
labor  rather  than  traffic."  And  so  the  peddler's  shop  on 
wheels  was  not  favored.' 

Another  statute  exempted  "  one  wagon,  cart  or  dray,  one 
sleigh,  one  plow,  one  drag,  and  other  farming  utensils,  including 
tackle  for  teams,  not  exceeding  two  hundred  dollars  in  value."  ^ 
Under  this,  a  debtor  claimed  a  hearse.  By  the  reasoning  of 
the  foregoing  case,  he  should  have  been  denied ;  for  the  asso- 
ciation of  mentioned  articles  with  each  other,  and  the  exemp- 
tion of  other  farming  utensils,  exclude  the  idea  that  the  legis- 
lator meant  to  include  the  hearse  in  the  word  "  wagon  "  or 
any  other  that  was  employed.  But  by  liberal  construction, 
as  the  court  said,  the  exemption  was  allowed.^  Webster  had 
defined  hearse  as  "  a  carriage  for  conveying  the  dead  to  the 
grave,"  and  that  was  another  reason  assigned.  And  author- 
ity favored ;  for  the  same  statute  had  been  construed  to  ex- 
empt a  physician's  horse  and  sleigh ;  *  and  also  a  mowing 
machine  claimed  by  a  debtor  who  was  not  a  farmer  and  who 
did  not  use  it.^ 

Without  the  mention  of  any  wagon  of  any  kind ;  without 

Claiborne,  39  Tex.  363.  A  grocer's  coach  solely  for  passengers  was  non- 
delivery wagon  was  exempt.  Baker  exempt.  Quigley  v.  Gorliam,  5  Cal. 
V.  Hayzlett,  53  la.   18.     A  farmer's  418. 

four-wheeled  wagon  was  exempt  as  '  Smith  v.  Chase,  71  Me.  164. 

an  ox-cart    Favers  v.  Glass,  22  Ala.  2  Wisconsin  Laws  of  1883,  sec.  2982 

624.    An  insurance  agent's  horse  and  (6). 

buggy  were  exempt.  Wilhite  v. Will-  ^Spikes  v.  Burgess,  65  Wis.  428. 

iams,   41   Kan.  288.     A  hack  some-  <  Knapp  v.  Bartlett,  29  Wis.  68. 

times  carrying  passengers  and  some-  5  Humphrey  v,  Taylor,  45  Wis.  251. 

times  wood  was  exempt.     Rodgers  See  Van   Buren   v.  Loper,  29  Barb. 

V.  Ferguson,  32  Tex.  533.    A  hackney  389. 


WAGONS    AND    OT.IER    VEHICLES.  805 

naming  truck,  horse  or  wheel-barrow,  a  statute  exempted  a 
wagon  by  exempting  a  team,  the  court  held.'  A  team  is 
usually  attached  to  a  wagon  of  some  sort;  but  that  tlie  word 
"team,"  in  a  statute,  implies  the  thing  drawn  by  it,  seems 
novel ;  and  there  is  a  case  contrary  to  those  last  cited. - 

The  princijml  business  of  the  debtor,  who  has  more  than  one 
occupation,  is  understood,  when  he  claims  "  things  to  enable 
him  to  carry  on  the  profession,  trade,  occupation  or  business 
in  which  he  is  wholly  or  principally  engaged;  "  and  the  things 
need  not  be  absolutely  necessary  to  the  prosecution  of  his 
calling.^ 

Livery-stable-keeping  being  the  claimant's  principal  busi- 
ness, he  could  not  claim  exemption  as  a  teamster,  or  as  a  la- 
borer.^ The  principal  business  of  the  claimant  being  that  of 
a  peddler,  its  prosecution  required  a  wagon  and  team ;  and 
they  were  held  exempt  though  somewhat  employed  for  other 
purposes  than  the  main  one.  But  a  bread-box,  which  was  also 
used  in  the  peddler's  calling,  was  held  liable  to  execution  be- 
cause it  had  been  omitted  from  the  list  of  chattels  made  ex- 
empt by  the  statute.^ 

A  teamster  need  not  drive  his  own  team  to  become  the  ben- 
eficiary of  an  act  exempting  a  wagon  and  two  horses  to  a 
teamster ;  he  is  entitled  to  exemption  if  he  owns  teams  and 
employs  them  in  hauling  to  support  himself  and  family ;  he 
need  neither  hold  nor  drive ;  he  need  only  to  give  his  personal 
attention  to  teaming  in  order  to  be  a  teamster —  so  it  is  held.^ 
It  is  not  every  one  who  drives  a  team  that  is  a  teamster ;  and 
every  teamster  is  not  a  driver  necessaril}'.^  The  teamster  may 
have  many  teams  and  wagons,  driv^en  by  employees :  he  is  enti- 
tled to  select  one  team  and  wagon,  according  to  the  decisions 
cited. 

The  fact  that  the  claimant  of  the  team  is  himself  the  driver 
may  be  a  circumstance,  however,  on  which  the  question  of  ex- 
emption will  hinge.  An  oil-dealer,  who  was  rather  a  merchant 

1  Dains  v.  Prosser,  32  Barb.  290;  ^  Edgcomb  v.  His  Creditors,  19  Nev, 
Brown   v.  Davis,   9    Hun,  43;   Van     149. 

Buren  v.  Loper,  29  Barb.  388 ;  East-  5  Stanton  v.  Frencli,  91  Cal.  274 ;  27 

man  v.  Caswell.  8  How.  Pr.  75.  P.  657. 

2  Morse  v.  Keyes,  6  How.  Pr.  18.  <*  Elder  v.  Williams,  16  Nev.  416. 
» Kenyon  v.  Baker,  16  Mich.  373.  '  Brusie  v.  Griffith,  34  Cal.  306. 


806  THINGS    EXEMPT. 

than  a  teamster  so  far  as  his  principal  business  character  was 
concerned,  was  shown  to  have  an  oil-tank  upon  wheels  which 
was  drawn  by  a  team  sometimes  driven  by  himself,  and  used 
in  delivering  oil  to  his  customers.  His  team  and  tank,  or 
wagon,  were  held  exempt  as  property  with  which  he  habitu- 
ally earned  his  livelihood.^ 

Where  there  is  special  exemption  of  certain  kinds  of  chattels, 
such  as  a  team  to  a  teamster,  it  does  not  matter  how  much 
the  debtor  is  worth  beyond  such  article  in  other  species  of 
property.  He  may  be  worth  many  thousands  of  dollars  yet 
be  entitled  to  have  one  team  exempt.'^  Such  special  exemp- 
tions are  found  in  many  statutes,  as  to  agricultural  imple- 
ments, mechanics'  tools,  and  those  of  other  employments, 
manual  and  professional. 

A  statute  exempting  one  "  wagon,  cart  or  dray,  two  plows, 
one  drag,  and  other  farming  utensils,  including  harness  and 
tackle  for  teams,  not  exceeding  in  value  three  hundred  dollars," 
was  construed  to  exempt  the  articles  specified  and  "  three 
hundred  dollars'  worth  of  property  in  addition."  The  last 
clause  was  held  to  refer  only  to  the  "  other  farming  uten- 
sils," so  that  there  were  exempted  the  articles  first  named, 
and  also  three  hundred  dollars'  worth  of  "  other  farming  uten- 
sils, including  harness  and  tackle  for  teams."  * 

§  8.  Domestic  Animals. 

The  absolute  exemption  of  specified  things  relieves  from 
the  necessity  of  choice  when  the  debtor  has  only  that  which 
is  thus  exempted.  If  he  has  more,  he  makes  the  selection  — 
not  the  officer.*  H  he  neglects  to  do  so,  it  seems  that  the 
officer  should  look  to  the  debtor's  interest,^  though  there  is 

1  Consolidation  Tank  Co.  v.  Hunt  one  horse    exempted.     Rutledge    v. 

(la.),  48  N.  W.  1057.  Rutledge,  8  Bax.  33. 

^  Smith  V.  Slade,  57  Barb.  637,  citing  ^  The  debtor  owning  two  animals 

Wilcox  V.  Hawley,  31  N.  Y.  658,  and  and  entitled  to  save  one  from  execu- 

other  cases,  tion  may  select  the  one  free  from 

3  Donmyer  v.   Donmyer,   43  Kan.  mortgage  if  the  other  is  mortgaged 

444.  and  out  of  his  possession.     Without 

*One  of  two    animals  being  ex-  selection,  it  seems  that  the  former 

empt,  the  debtor  may  elect  which  he  would  be  deemed  the  exempt  one. 

will    retain.     Savage    v.    Davis,    134  Tayon    v.    Mansir,    2  Allen   (Mass.), 

Mass.  401  ;  Everett  v.  Herrin,  46  Me.  219 ;   Cooper  v.   Neumaus,  45  N,  H. 

857.     He  may  have  a  half-interest  in  339. 


DOMESTIC    ANIMALS. 


801 


no  invariable  rule.'  The  officer  docs  not  always  know  whether 
one  of  the  two  animals  is  mortgaged,  or  is  a  borrowed  one; 
and  he  is  not  responsible  for  levying  upon  either  when  the 
debtor  has  failed  to  inform  him.'  The  debtor,  selecting  a 
horse,  is  not  bound  to  bring  other  horses  from  another  county 
for  the  sheriff  to  levy  upon.^ 

When  the  exemption  of  domestic  animals  is  made  to  depend 
upon  the  avocation  of  the  owner,  he  is  not  denied  the  benefit 
because,  though  needing  them  in  one  calling,  he  also  follows 
another  in  which  they  are  not  necessary.*  He  may  employ 
the  same  animal  in  different  capacities,  though  in  only  one  is 
it  exempt  by  the  statute^  If  the  employment  must  be  that 
by  which  the  ow^ner  makes  his  living,  he  cannot  hold  a  team 
exempt  which  is  wholly  used  in  a  secondary  calling." 

A  team  may  be  kept  for  hire,  and  thus  serve  in  the  making 


1  The  debtor  being  entitled  to  re- 
tain a  horse  or  yoke  of  oxen,  and  the 
latter  being  mortgaged,  the  officer 
was  not  liable  for  levying  upon  the 
horse  when  the  fact  of  the  mortgage 
of  the  oxen  had  not  been  communi- 
cated to  him.  McCoy  v.  Dail,  6  Bax. 
137. 

2  So,  though  the  debtor  own  one 
cow  and  have  a  hired  one,  and  the 
officer  took  the  one  owned,  the  levy 
was  held  not  trespass.  lb.;  Lindsey 
V.  Fuller,  10  Watts,  144. 

3  Anderson  v.  Ege,  44  Minn.  216 ; 
46  N.  W.  363. 

*  A  pair  of  horses  were  claimed  as 
exempt  by  the  debtor  in  his  capacity 
of  peddler  and  huckster.  He  was 
shown  to  be  also  a  publisher  of 
county  directories  and  hand-books, 
but  this  did  not  disprove  his  other 
calling :  so  he  held  his  horses.  Paul- 
son V.  Nunan,  72  Cal.  243. 

5  Two  horses  were  exempt  by  law 
to  each  farmer.  A  farmer,  in  his 
capacity  as  such,  worked  his  horse 
on  his  farm,  but  he,  in  another  ca- 
pacity, employed  the  same  horse; 
he  claimed  exemption  and  had  his 


claim  allowed.  McCue  v.  Tunstead, 
65  Cal.  506.  See  Eobert  v.  Adams,  38 
Cal.  383. 

•"Two  horses  and  a  wagon  were 
claimed  by  debtors  in  their  capacitj' 
as  teamsters,  though  they  were  also 
coal-dealers.  The  court  said :  "In 
order  to  entitle  a  party  to  claim  as 
exempt  from  execution,  two  horses, 
etc.,  under  the  sixth  subdivision  of 
§  690  [of  the  Code  of  Civil  Proced- 
ure], he  must  show  that  he  is  a  cart- 
man,  drayman,  truckman,  huckster, 
peddler,  teamster  or  other  laborer, 
and  that  he  habitually  earns  his  liv- 
ing by  the  use  of  such  horses,  etc. 
C.  C.  JP.,  g  690;  Brusie  v.  Griffith,  34 
Cal.  302.  The  findings  in  this  case 
do  not  show  that  state  of  facts."  So 
exemption  was  denied.  Dove  v. 
Nunan,  62  Cal.  399;  Calhoun  v. 
Knight,  10  Cal.  393.  So,  a  physician, 
who  claims  two  horses,  must  show 
that  he  uses  both  in  the  prosecution 
of  his  profession  to  earn  his  living. 
Corp  V.  Griswold,  27  la.  379.  But  a 
teamster  need  not  drive  his  own 
team.  Elder  v.  Williams,  16  Nev. 
416. 


808  THINGS    EXEMPT. 

of  a  livelihood,  and  therefore  be  exempt.'  It  may  not  be 
hired  out  at  the  time  a  levy  is  about  to  be  made,  for  there 
are  always  intervals  of  non-employment  in  such  business ;  yet 
the  team  would  not  be  liable.  Even  if  the  owner's  right  of 
exemption  depends  upon  his  own  personal  use  of  his  team,  he 
would  not  forfeit  the  right  because  temporarily  resting  from 
his  calling,  with  his  horses  turned  out  to  grass.'^  Horses  may 
be  work-horses,  carriage-horses  or  plough-horses,  within  the 
meaning  of  a  statute,  though  not  actually  employed  as  such 
at  the  time  of  levy.^  Such  horses  always  require  harness 
when  they  are  used:  does  the  description  of  these  as  "  work- 
horses," etc.  in  the  statute,  imply  the  exemption  of  the  nec- 
essary trappings  ?  * 

Having  claimed,  the  debtor  must  stand  to  his  choice.  He 
cannot,  as  a  matter  of  right,  change  his  selection ;  and  if  he 
has  chosen  an  idle  "  work-horse,"  it  must  be  one  fit  for  use  in 
his  calling,  and  designed  for  such  use.^  If  he  has  declined  to 
choose,  he  cannot  complain  of  the  levy  upon  either  of  tv^o, 
each  of  which  had  been  subject  to  his  own  selection.** 

The  making  of  a  livelihood  is  not  the  only  use  to  which  do- 
mestic animals  may  be  put,  that  they  may  be  rendered  invio- 
lable when  the  sheriff  comes.     They  may  be  employed  for 

1  A  team  let  for  hire  was  used  to  fai'ming  or  teaming  is  held  not  to 
earn  money  for  the  family,  and  so  include  harness.  Somers  v.  Emer- 
the  owner  held  them  exempt.  Wash-  son,  58  N.  H.  48.  Contra,  Cobbs  v. 
burn  V.   Goodheart,   88  111.  229.     A  Coleman,  14  Tex.  594. 

widow  had  a  horse,  cow  and  calf  ex-  ^  One  having  claimed  a  horse  can- 

empted,  though  they  were  hired  out.  not  afterwards  take  oxen    instead, 

riollier  V.  Latimer,  8  Bax.  420.  under  a  statute    exempting  either, 

2  Two  horses  and  a  hack,  belong-  though  he  may  not  have  owned  the 
ing  to  a  hackman  who  earned  his  horse.  Barney  v,  Keniston,  58  N.  H. 
living  with  them,  were  levied  upon  168.  Either,  when  selected,  must  be 
when  the  horses  were  at  pasture  and  required  for  present  or  early  use,  to 
the  hack  at  shop  to  be  painted  :  held  save  it  from  liability  to  attachment, 
exempt.  C.  C.  P.  290 ;  Forsyth  v.  Jaquith  v.  Scott,  63  N.  H.  5 ;  S.  C, 
Bower,  54  Cal.  639.  56  Am.  Rep.  476 ;  Cutting  v.  Tappan, 

3  Work-horse  described.    Nolaud  v.  59  N.  H.  562. 

Wickham,   9   Ala.    169 ;    Allman    v.  <>  If  the  debtor  refuse  to  elect  be- 

Gann,   29    Ala.   240.     A   horse  pre-  tween  a  yoke  of  oxen   and  a  horse, 

Bumed  to  be  a  plough-horse,  because  he  cannot  afterwards  be  heard   to 

fit  for  the  plough.    Matthews  v.  Red-  complain    that  either    is    attached, 

wine,  25  Miss.  99.  Davis  v.  Webster,  59  N.  H.  471. 
*  The  exemption    of    a  horse  for 


DOMKSTIC    ANIMALS.  809 

convenience,  for  social,  educational  and  religious  purposes, 
when  the  statute  enumerates  one  object  or  more,  and  then 
adds  "  other  uses."  ^ 

Domestic  animals  are  often  exempted  without  any  qualifi- 
cation as  to  their  uses;^  and,  as  above  remarked,  even  where 
there  is  such  qualification,  the  use  need  not  bo  immediate  if 
there  is  fitness  for  use  and  design  to  use.' 

The  debtor  cannot,  at  the  juncture  when  his  property  is 
about  to  be  levied  upon,  swap  off  liable  property  for  an  ani- 
mal specified  by  statute  as  exempt,  with  the  view  of  foiling 
the  creditor.  A  liable  thing  is  not  changed  in  character  by 
exchange  for  an  exempt  one :  so,  after  the  transaction,  it  may 
be  attached  or  levied  upon  in  the  hands  of  the  debtor.* 

The  general  rule  is  (though  not  in  every  state)  that  the  ex- 
emptionist  must  have  the  exclusive  right  of  possession  of  the 
chattel  he  claims  as  free  from  execution.  The  owner  of  a 
half  interest  in  two  things  cannot  claim  the  whole  of  one  of 
those  things.'^  He  has  not  the  exclusive  ownership  and  posses- 
sion of  either.  A  married  couple,  however,  may  be  tenants 
in  common,  or  joint  tenants,  and  still  have  exemption  in  the 
thing  held  without  doing  violence  to  any  principle.  She  may 
interpose  the  exemption  claim  when  he  is  away  ^  or  has  failed 
to  do  so. 

'  The  family  use  of  the  horse  se-  tion  of  domestic  animals,  is  not  al- 

lected  may  be  that  of  taking  chil-  ways   to  be   understood  as  present 

dren  to  school  and  church.     George  use ;  it  may  be  a  keeping  for  use  in 

V.  Fellows,  59  N.  H.   206.     The  Ian-  the   near  future.     Steele  v.  Lyford, 

guage  of  the  statute,  as  to  use,   is  59  Vt.  230 ;  George  v.  Bassett,  54  Vt 

"  farming  or  teaming    purposes  or  217 ;  Rowell  v.  Powell,  53  Vt  302 ; 

other  actual  use."    Gen.  Laws,  New  Freeman   v.    Carpenter,   10Vt433; 

Hampshire,  eh.  224,  sec.  2.     A  horse  Dow  v.  Smith,  7  Vt  465,     Whether  a 

used  in  collecting  accounts  was  ex-  race-horse  is  exempt  —  quere?    And- 

empt  Knapp  v.  O'Neill,  46  Hun,  317.  ersou  v.  Ege,  44  Minn.  216. 

'^  Two  cows,  not  used  for  the  fam-  ^  A  non-exempt  animal   does   not 

ily,   nor  necessary    for  them,   were  become  exempt  by  being  exchanged 

held  exempt  in  Kansas,  under  Comp.  for  one  that  is  so.     Connell  v.  Fisk. 

L.   (1879),  ch.    58,   §  3;  Nuzman  v.  54  Vt  381. 

Schooley,   36  Kan.  177.     A  yoke   of  ^If  a  certain  number  of  specified 

oxen  being  exempt  one  ox  is.  Wolf-  things  is  exempt,   the  debtor  who 

enbarger  v.  Standifer,  35  Tenn,  659.  owns  an  undivided  half  of  each  can- 

And  so  is  one  horse  when  a  pair  is  not  therefore  claim  twice  the  num- 

exempt  by  law.     Dearborn  v.  Phil-  ber,  or  half  of  twice  the  number, 

lips.  21  Tex.  449.  White  v.  Capron.  52  Vt  634. 

3  The  use  required,  for  the  exemp-  •'The  wife  of  an  absconding  farmer 


810 


THINGS    EXEMPT. 


There  is  no  straining  or  extension  of  a  statute  when  less  is 
asked  and  given  under  it  than  it  authorizes ;  thus  an  ox  may 
be  claimed  when  a  yoke  of  oxen  is  exempt ;  a  horse,  when  a 
pair  or  a  team  is  so ;  ^  but  the  animal  claimed  should  be  of  the 
same  kind  as  the  two  or  more  that  might  have  been  claimed; 
and  the  article  chosen  should  be  included  in  the  description  of 
articles  exempted  by  the  statute.  While  a  mule  may  be  re- 
spected properly  as  a  statutory  horse,  and  while  young  calves, 
though  not  cows  and  oxen,  eventually  may  grow  to  such  es- 
tate, it  would  seem  that  the  judicial  transformation  of  several 
legislative  creations  has  been  effected  wHth  almost  too  free  a 
hand.2 


who  was  privileged  to  claim  two 
horses  as  exempt  in  his  avocation 
was  held  entitled  to  hold  them 
against  his  creditors,  as  she  was  carry- 
ing on  the  farm.  Frazier  v.  Syas,  10 
Neb.  115. 

1  An  exempt  team  may  consist  of 
but  one  horse.  Wilcox  v,  Hawley, 
31  N.  Y.  648 ;  Harthouse  v.  Rikers,  1 
Duer,  606 ;  Lockwood  v.  Younglove, 
27  Barb.  505 ;  Wheeler  v.  Cropsey,  5 
How.  Pr.  288 ;  Finnin  v.  Malloy,  33 
N.  Y.  Superior,  382.  A  mare  and  her 
colt  four  months  old  were  held  ex- 
empt under  the  statutory  descrip- 
tion, "  a  span  of  horses."  Ames  v. 
Martin,  6  Wis.  359,  361.  Instead  of 
pork  and  hogs  one  may  take  pigs, 
etc.  Byous  v.  Mount,  89  Tenn.  361 ; 
Tenn.  Code,  §§  2931-2. 

2  "  In  Mundell  v.  Hammond,  40  Vt. 
641,  two  calves  nine  months  old  were 
saved  to  the  debtor  under  a  statute 
exempting  '  a  yoke  of  oxen  or  steers.' 
In  Mallory  v.  Berry,  16  Kan.  293,  a 
wild,  unbroken  steer,  twenty  months 
old.  was  held  exempt  under  a  statute 
exempting  '  a  yoke  of  oxen.'  In  Fa- 
vors V.  Glass,  22  Ala.  624  [58  Am. 
Dec.  272],  a  cart  was  held  to  include 
a  four-wheeled  wagon.  In  Texas, 
under  a  statute  exempting  'two 
horses,'  a  horse  and  mule  are  ex- 
empt    Allison  v.  Brookshire,  38  Tex. 


200.  In  Tennessee,  a  jackass  is  ex- 
empt under  a  statute  exempting  'a 
horse,  mule  or  yoke  of  oxen.'  Rich- 
ardson V.  Duncan,  2-Heisk.  220;  and 
see  Webb  v.  Brandon,  4  Heisk.  288 ; 
Freeman  v.  Carpenter,  10  Vt.  433. 
[S.  C,  33  Am.  Dec.  210] ;  Wilcox  v. 
Hawley,  31  N.  Y.  655."  Dissenting 
opinion  of  Judge  Leonard  in  Edg- 
comh  V.  His  Creditors,  19  Nev.  156. 
A  yearling  heifer  was  not  included 
in  "  two  cows  and  a  calf."  Mitchell 
v.  Joyce,  69  la.  121 ;  la  Code,  §  3072. 
A  pair  of  cattle,  two  years  old,  not 
broken  to  the  yoke,  were  held  to  an- 
swer the  statute  description,  "  a  yoke 
of  oxen."  And  the  court,  in  so  holding, 
said:  "The  general  tendency  of  the 
courts  is  to  hold  that  where  a  statute 
exempts  '  horses,'  '  oxen '  or  '  cows,' 
young  animals  of  the  species  and  de- 
scription tliat  by  time  and  subse- 
quent growth  would  become  such, 
in  the  popular  sense,  are  within  the 
meaning  and  import  of  these  terms 
as  used  in  the  statute.  Dow  v. 
Smith,  7  Vt.  4C5;  Freeman  v.  Car- 
penter, 10  Vt.  433 :  Carruth  v.  Grassie, 
11  Gray,  211 ;  "  and  other  cases  were 
cited.  Berg  v.  Baldwin,  31  Minn. 
541.  Some  of  the  constructions  are 
more  cautious  —  not  to  say  more  rea- 
sonable. A  horse,  used  by  a  tanner, 
is  held  not  ex'empt  as  a  tool  or  iinple- 


TUINGS  NEKDED  IN  liU.SINE.-JJJ  j  STOCK  JN  IKADE.       bii 

If  the  claimant's  privilege  depends  upon  his  avocation,  he  can- 
not claim  property  belonging  jointly  to  himself  and  his  wife. 
The  interest  of  his  wife  may  be  sold  under  execution,  leaving 
him  powerless  to  recover  it.  Were  the  j)roi)erty  hers  sepa- 
rately, he  could  not  claim  exemption.  So  the  rulings  have  been, 
under  statutory  direction.^  A  peddler  claimed  a  pair  of 
horses  and  a  wagon,  alleged  to  be  used  in  his  business,  and  was 
denied  the  right  of  holding  them  exempt,  because  his  wife  was 
half  owner  —  the  above  cited  case.  The  debtor  should  show  j 
that  the  live-stock,  or  other  property  claimed,  belongs  to  his 
wife,  if  that  is  the  case.^ 

If  the  debtor  claims  a  horse  when  he  owns  none,  he  cannot 
hold  one  subsequently  purchased,  by  virtue  of  that  claim.^ 

A  liver3^-stable  keeper  claimed  the  exemption  of  his  span  of 
horses  and  carriao^e,  contendinf>:  that  his  callino-  was  included 
in  the  enumeration  of  peddlers,  cartraen,  hucksters,  teamsters 
and  laborers  recited  in  the  statute ;  but  his  claim  was  denied.* 
The  claim  of  the  debtor  should  be  within  the  law. 

§  9.  Things  Needed  in  Business ;  Stock  in  Trade. 

The  provision  that  "the  tools,  implements,  working  animals, 
and  stock  in  trade  not  exceeding  three  hundred  dollars  in 
value,  of  any  mechanic,  miner  or  other  person  not  being  the 

vient  of  the  tanner's  trade  (Wallace  v.  2  Coffee  v.  Adams,  65  Ga.  349. 

Collins.  5  Ark.  41),  though  we   have  3  Smith  v.  Eckels,  65  Ga.  3^6. 

seen  that  a  doctor's  buggy-horse  has  ^  Edgcomb  v.  His  Creditors,  19  Nev. 

been  exempted  as  a  tool.     Ordinarily  149 ;  Brusie  v.  Griffitli,  34  Cal.  306 ; 

it  is  as  a  domestic  animal  that  the  Dove  v.  Nunan,  62  Cal.  400.     Judge 

physician  holds  his  hoi'ses.     If  en-  Leonard,  dissenting  from  the  decision 

titled  to  an  exempt  horse  or  pair,  in  Edgcomb  v.  His  Creditors,  said : 

used  by  himself  to  make  his  living,  "  I  have  no  doubt  that  the  legislature 

he  may  use  two  horses  together  or  intended    to    exempt    two  animals, 

separately.     Corp.  v.  Griswold,  27  la.  with  their  harness  and  other  equip- 

379.     Habitual  use:  Bevan   v.  Hay-  ments,  and  any  suitable  vehicle,  by 

den,  13  la.  122;  Whicher  v.  Long,  11  the  use  of  which  any  person  habitu- 

la.  48 ;  Parkins  v.  Wisner,  9  la.  320 ;  ally  earns  his  living,  and  to  the  ex- 

Farner  v.   Turner,   1  la.  54.     Other  ercise  of  whose  business  such  animals, 

cases    relative  to  physician's   horse  etc.,  are  necessary."     The  act  quali- 

and  buggy  :  Van  Buren  v.  Loper,  29  tied  the  exempt  articles  by  the  words. 

Barb.   3^8 ;   Eastman   v.    Caswell,   8  "  by  the  use  of  which  a  cartman  .  .  . 

How.  Pr.  75 ;  Wheeler  v.  Cropsey,  5  or  other  laborer  habitually  earns  his 

How.  Pr.  288.  living." 

>  Stanton  v.  French,   83  Cal.    194; 
Cal.  Code  Civ.  Proc,  §  690.  par.  6. 


812  THINGS    EXEMPT. 

head  of  a  family,  used  and  kept  for  the  purpose  of  carrying 
on  his  trade  and  business,  shall  be  exempt  "  while  such  person 
is  a  resident  of  the  state,'  was  held  to  exempt  a  bachelor's 
buckboard  and  horse  used  in  his  business  of  assaying  ores  and 
sampling  them.  The  claimant  was  neither  mechanic  nor 
miner,  but  he  was  an  "other  person:"  was  he  using  and  keep- 
ing his  horse  and  buggy  for  the  purpose  of  prosecuting  his 
business  as  a  sampler  and  assay er?  Does  the  statute  mean 
necessarily  using  for  such  purpose?  The  court  said  that  the 
"  clear  intention  "  of  the  framers  of  the  statute  seems  to  have 
been  to  exempt  "  those  articles  of  personal  property  commonly 
and  necessarily  used  ...  in  carrying  on  the  various  avo- 
cations." The  buckboard,  horse  and  harness  were  thought 
necessary  by  the  court  (since  this  assayer  was  itinerant),  and 
so  the  statute  covered  him  and  his  business.' 

It  has  been  held  too  narrow  to  construe  the  phrase  used  to 
carry  on  husiness  as  meaning  necessarily  used;  ^  and  that  the 
use  need  not  be  in  the  principal  business  of  the  beneficiary.* 
However,  the  principal  business,  or  that  by  which  livelihood 
is  made,  is  usuall}^  meant  by  the  exemption  statutes  which 
favor  cei'tain  avocations.*  In  a  claimant's  capacity  as  a  car- 
penter, building  material  to  be  worked  up  by  him  was  ex- 
empted to  the  amount  of  one  hundred  dollars.^  And  unfin- 
ished burial  cases  were  exempted  to  the  maker.'' 

A  farmer  who  has  his  agricultural  implements  free  from 
execution,  in  his  capacity  as  farmer,  cannot  claim  other  prop- 
erty under  the  term  "other  person,"  occurring  in  the  statute 
in  the  phrase  the  "  tools  and  implements,  or  stock  in  trade,  of 
any  mechanic,  miner  or  other  person^  used  and  kept  for  the  pur- 
pose of  carrying  on  his  trade  or  business,  not  exceeding  two 
hundred  dollars  in  value."  ^  A  claimant  in  the  capacity  of  a 
farmer  claimed  agricultural  implements  to  the  value  fixed ;, 

•  Colo.  Gen.  Stat,  p.  603.  5  Smalley  v.  Masten,  8   Mich.  528 ; 

^Waisoii    V.  Lederer,  11  Colo.  577.  Morrill  v.  Seymour,  3  Mich.  64. 

See  Bevitt  v.  Crandall,  19  Wis.  610.  «  Hutchinson  v.  Roe,  44  Mich.  389. 

3  Stewart  v.  Weitou,  32  Mich.  56.  "  McAbe   v.   Thompson,    27   Minn. 

*7b.;  Keuyon   v.    Baker,  16  Mich.  134. 

376.     Coiupare  O'Donnell  V.  Segar,  25  sThis  was  in  §  31,  ch.   134  of  Rev. 

Mich.  367.  Stat,  of  Wis.,  which  is  like  the  Colo- 
rado provision  above  cited. 


IfFRCHANTs'  STOCK    IN    TRADE.  813 

and  then  in  the  capacity  of  an  "other  person/'  ho  claimed  a 
grain  drill  in  addition.     This  was  refused.^ 

§  10.  Merchants'  Stock  in  Trade. 

Whether  a  merchant  maychiim  liis  floods,  to  the  amount 
limited  in  the  statutes  above  cited,  has  been  carefully  dis- 
cussed. The  phrase,  "  otlier  person  not  being  the  head  of  a 
family,"  has  been  held  applicable  to  a  merchant  without  fam- 
ily. In  a  case  in  which  the  question  was  well  considered 
and  decided,  it  was  said:  "There  is  nothing  in  the  general 
scope  of  the  section  which  sustains  the  ap])cllants'  proposition 
that  the  proviso  relating  to  those  who  are  not  heads  of  families 
is  to  be  limited  to  any  particular  class  of  debtors.  Unless, 
therefore,  the  language  of  the  proviso  has  tlie  effect  of  exclud- 
ing the  merchant,  he  must  be  held  to  be  included  within  its 
provisions.  That  its  language  cannot  have  this  effect  is  clear. 
The  articles  enumerated  are  practically  the  same  as  those 
mentioned  in  other  subdivisions,  except  the  furniture,  the  ani- 
mals, food,  supplies,  etc.,  ordinarily  kept  by  the  head  of  a  fam- 
ily. These  articles  are  '  tools,  implements,  working  animals, 
books  and  stock  in  trade.'  This  description  of  exempt  prop- 
erty is  quite  broad  enough  to  show  that  it  was  the  intention  of 
the  legislature  to  extend  to  this  class  of  debtors  the  same  pro- 
tection that  is  offered  by  the  statute  to  heads  of  families.  And 
this  intention  is  manifested  as  well  by  the  description  con- 
tained in  the  proviso  of  the  persons  who  are  declared  to  be  en- 
titled to  its  benefits  — '  mechanics,  miners  or  other  persons.' 
That  these  general  words  may  include  the  merchant  cannot 
be  doubted;  and,  inasmuch  as  the  entire  statute  reveals  an  in- 
tention on  the  part  of  the  legislature  to  protect  all  citizens 
alike,  effect  should  be  given  to  such  intention  by  extending  its 
provisions  to  the  shopkeeper  as  well  as  the  mechanic."  ^ 

•  Bevitt  V.  Crandall.  19  Wis.   610,  of  Watson  (above  cited)  the  particu- 

One  may  be  a  tailor,  tavern-keeper,  or  lar  question  relative  to  merchants  was 

the  follower  of  any  other  avocation,  expressly  excepted.     The  Wisconsin 

and  yet  be  "  actually  engaged  in  the  statute  is  held  to  include  merchants, 

science  of  agriculture."    Springer  v.  Wicker  v.   Comstock,   52   Wis.   815. 

Lewis,    22    Pa.    St.    191.      Compare  In  this,  the  court  said :  "  We  find  no 

Simons  v.  Lovell,  7  Heisk.  510.  adequate  provision  in  favor  of  mer- 

2  Martin  v.  Bond,  14  Colo.  466,  4?L  chants  or  shopkeepers  as  a  class,  un- 

The  court  pointed  out  that  in  the  case  less  it    is  contained   in   the  statute 


814  THINGS    EXEMPT. 

A  similar  statutor}'-  provision  ^  was  held  not  applicable  to 
merchants.  The  term  stoch-in-trade  was  understood  not  to 
cover  merchandise  b()u<^ht  and  sold  for  profit.  Wliilc  articles 
manufactured  for  sale,  such  as  watches  and  jewelry,  were  in- 
cluded in  the  articles  exemjited,  goods  bought  to  be  sold  were 
excluded.^  Similar  statutory  i)rovision  is  found,  and  the  con- 
struction is  against  the  merchant.^ 

Though  goods  kept  for  sale  by  merchants  (even  millinery 
and  fancy  articles  and  the  stock-in-trade  of  small  dealers)  are 
not  exempt  in  every  state,  there  is  an  exemption  of  such  arti- 
cles as  the  owner  himself  has  made,  by  some  statutes ;  and, 
where  such  statutes  exist,  the  exemption  is  not  lost  by  the 
placing  of  such  articles  on  sale  with  the  rest  of  the  stock.^ 
This  is  not  such  mingling  of  stock  as  would  render  the  whole 
non-exempt,^  if  the  home  manufactured  articles  can  be  segre- 
gated from  the  non-exempt  goods. 

The  exchange  of  a  stock  of  goods,  which  has  been  set  apart 
as  exempt,  for  other  goods  of  like  character  and  value;  or  its 
sale  in  due  course  of  trade,  followed  by  other  stock  purchased 
with  the  proceeds,  would  not  forfeit  the  exemption.^  If  the 
stock  exceeds  the  value  allowed  by  statute  as  exempt,  the 
merchant  should  make  a  selection.'' 

under    consideration.      Their    little  This  reference  to  liberality  of  con- 
stocks  in  trade  may  be  as  indispensa-  struction  is  not  so  convincing,  per- 
ble  to  the  support  of  their  families  as  haps,  as  the  argument  in  the  Colo- 
are  the  tools  of  a  mechanic  or  miner,  rado  case  of  Martin  v.  Bond,  aupra, 
the  press  and  types  of  the  printer,  or  preceding  the  quoted  remark, 
the    library    of    the    lawyer.     Why  ^  Grimes  v.  Bryne,  2  Minn.  72. 
should  they  not  have  the  same  pro-  *  Hillyer  v.  Remore,  42  Minn.  254 ; 
tection  as  the  others?    And,  when  we  Gen.  Stat.  Minn.  (1878),  ch.  66,  §  310, 
find  language  in  a  statute  which  may  el.  8;  Laws  of  1881,  ch.  25,  %  1;  Re^ 
fairly  be  construed  as  giving  them  Jones,   2  Dill.   343.     See  Grimes  v. 
the  same  protection  extended  to  other  Bryne,  2  Minn.  72 ;  Prosser  v.  Hart- 
classes  of  debtors,   why   should  not  ley,  35  Minn.  340 ;  Bequillard  v.  Bart- 
that  construction  be  adopted?  "  lett,  19  Kan.  382:  Guptil  v.  McFee,  9 

1  Gen.  Stat,  of  Kansas,  pp.  473-4.  Kan.  30. 

2  Bequillard  V.  Bartlett,  19  Kan.  382.  szielke  v.  Morgan,  50  Wis.  560; 
This  case  was  criticised  in  the  last  Smith  v.  Turnley,  44  Ga.  243. 

one  cited,  in   a  paragraph  ending:  "  Dodd  v.  Thompson,  63  Ga.  393; 

'■  So  nice  a  distinction  is  hardly  con-  Johnson   v.    Franklin,   63    Ga.    378; 

sonant  with  the  elementary  principle  Rosenthal  v.   Scott,   41    Mich.    632 ; 

of  construction  that  exemption  stat-  O'Dounell  v.  Segar,  25  Mich.  367. 

utes  should  be  construed  liberally."  ^  Wicker  v.  Comstock,  52  Wis.  815 ; 


CKOPS    ANO    PROVISIONS.  815 

When  a  statute  exempts  stock  in  trade  or  business  to  a  given 
amount,  it  should  not  be  construed  to  favor  unlawful  business.' 
It  does  not  exempt  burglars'  tools,  kit  and  outfit;  lottery 
wheels  and  stock  of  tickets  on  hand,  or  any  paraphernalia  of 
a  prohiI)ited  compan}^;  illicit  distillery  stock  and  machinery, 
and  the  like. 

When  the  debtor  has  promised  to  turn  his  stock  of  goods 
over  to  his  creditor,  has  he  thereby  waived  his  exemption  priv- 
ilege? This  question  has  been  answered  in  the  negative.-  But 
there  is  waiver  when  a  merchant  fails  to  select  his  allowed 
portion  from  a  larger  stock.  Thus,  when  two  hundred  dollars' 
worth  of  goods  were  selectable  as  exempt,  and  the  debtor 
neither  selected  nor  claimed,  he  lost  his  privilege.^ 

§  11.  Crops  and  Provisions. 

Courts  have  been  so  liberal  to  debtors  in  the  exemption  of 
crops  that  they  have  intimated  and  even  held  that  the  crops 
used  for  the  family  b}^  the  head  of  it,  and  for  seeding  and 
making  the  next  crop,  are  exempt  even  though  they  some- 
what exceed  in  value  the  original  exemption.^ 

The  statutes,  in  some  instances,  exempt  whatever  is  neces- 

Fick  V.  Mulholland, 48Wis.  413;  Fow-  inal  exemption;  and  if  more,  the 
ler  V.  Hunt,  48  Wis.  345 ;  Russell  v.  spirit  and  indeed  the  very  words  of 
Lennon,  39  Wis.  570 ;  Walsch  v.  Call,  the  case  [Wade  v.  Weslow],  62  Ga. 
32  Wis.  159;  Behymer  v.  Cook,  5  562,  would  cover  the  case.  A  little 
Colo.  395.  exemption,  like  this,  should  it  en- 
1  Walsch  V.  Call,  supra.  large  into  an  improved  means  of 
2,Washburn  v.  Goodheart,  88  111.  livelihood,  may  all,  as  the  fruit  of 
229.  what  was  set  apart,  be  well  held  not 
3  Zielke  v.  Morgan,  50  Wis.  560.  liable  to  seizure  to  pay  old  debts." 
^  The  language  of  a  court  so  hold-  Kupferman  v.  Buckholts,  73  Ga.  778. 
ing  (speaking  of  a  prior  case,  John-  Growing  crops  are  not  subject  to 
son  V.  Franklin,  63  Ga.  378)  is :  "  It  levy  in  Georgia  Scolley  v.  Pollock, 
was  held  that  when  farm  products  65  Ga.  339.  In  Alabama,  the  land- 
were  set  apart  as  an  exemption  and  lord's  lien,  for  rent  and  advan^-es  on 
used  in  the  support  of  the  family  and  the  crop,  is  not  liable  to  levy  or  at- 
in  making  the  next  year's  crop,  the  tachment.  Starnes  v.  Allen,  58  Ala, 
crop  so  made  would  be  exempt,  316.  But  the  landlord  may  subject 
especially  if  not  greater  than  the  the  growing  crop  of  his  tenant,  for 
original  exemption.  .  .  .  Here,  rent  due,  by  attachment,  when  the 
what  was  left  to  make  the  next  crop  conditions  are  such  that  such  remedy 
after  paying  for  the  rent  of  the  land  may  be  invoked,  under  Missouri  stat- 
and  the  support  of  the  family,  was  ute.  Crawford  v.  Coil,  69  Mo.  588 ; 
scarcely,  if  at  all,  more  than  the  orig-  Hubbard  v.  Moss,  65  Mo.  647. 


Sl(!  THINGS    EXEMPT. 

sary  as  pio visions  for  the  support  of  the  family  and  the  seed- 
ing- of  the  next  crop,  fixing  no  sum  as  the  ultimuiam:  so,  in 
cases  of  dispute,  the  jury  decides  how  much  is  requisite.  The 
growing  crop  may  be  levied  upon,  so  far  as  it  is  not  exempt, 
but  its  maturity  must  be  awaited  before  sale.'  The  value  at 
the  date  of  sale,  when  the  crop  is  ripe,  is  that  which  is  reck- 
oned in  a  claim  for  damages  for  wrongful  seizure  or  conver- 
sion.2 

It  does  not  follow  that,  because  a  farm  is  exempt  as  home- 
stead, its  products  are  so;  for  instance,  grain  produced  upon 
such  a  farm,  and  harvested,  was  held  to  derive  no  exemption 
character  from  its  homestead  origin.^ 

Crops  are  not  everywhere  exempted  to  heads  of  families 
exclusively.* 

It  was  said  respecting  the  attachment  of  a  crop:  "  It  is  well 
settled  that  the  lien  of  a  landlord  for  rent  and  advances  is  su- 
perior to  all  other  liens,  and  will  prevail  against  a  claim  of 
exemption,  as  regards  the  crops  grown  on  the  rented  prem- 
ises. The  declaration  of  exemption  not  only  makes  a  general 
claim,  but  also  recites  the  attachment  and  its  levy,  and  claims 
the  property  levied  upon  as  exempt  particularly  from  attach- 
ment. If  the  relation  of  landlord  and  tenant  in  fact  existed 
between  the  plaintiffs  and  defendant  in  the  attachment,  and 
the  indebtedness  is  for  rent  and  advances,  and  the  attachment 
was  issued  for  the  enforcement  of  the  landlord's  lien,  and  the 
crops  levied  on  were  grown  on  the  rented  premises,  they  are 
subject  to  the  attachment,  and  the  claim  of  exemption  is  friv- 
olous and  unavailing."  ^ 

Where  exemption  prevails  even  against  the  landlord's  claim, 
it  may  be  waived  expressly,  in  such  broad  terms  as  these: 
"  The  benefit  of  all  laws  or  usages  exempting  any  property 

•  Howard  v.  Rugland,  35  Minn.  388 ;  N.  W.  451,  distinguishing  McCoy  v. 

McAbe  V.  Thompson,  27  Minn.  134 ;  Brennan,  61  Mich.  362. 

Murphy  v.  Sherman,  25  Minn.   196 ;  » Horgan  v.  Amick,  62  Cal.  401. 

Lynd  v.  Picket,  7  Minn.  128.  *A  third  of  his  crop  was  exempted 

2  Sherman  v.  Clark,  24  Minn.  37 ;  to  a  laborer  who  was  not  the  head  of 

Hossfeldt  V.  Dill,  28  Minn.  469 ;  How-  a  family.     Prince  v.  Nance,  7  S.  C. 

ard  V.  R.,  supra.     Farm  products  to  351. 

the  value  of    $250    are  exempt  by  5  Bryan  v.  Kelly,  85  Ala.  569,  576 ; 

Howell's  Stat.  Mich.,  ch.  266,  §  27  (8).  Ex  parte  Barnes,  84  Ala.  540. 
Hutchinson  v.  Whitmore  (Mich.),  51 


CEOPS    AND    PROVISIONS. 


817 


from  distress  or  execution  for  rent  is  hereby  waived." '  On 
the  other  hand,  the  landlord's  lien  on  household  goods  may  be 
dislodged  by  sale  by  the  tenant,  if  notice  be  given  him  and  he 
assents  to  the  sale;  or  if  the  circumstances  be  such  that  his 
assent  may  be  presumed.^ 

Whether  a  tenant  or  other  claimant  is  entitled  to  the  ben- 
efit of  an  exemption  law  has  been  held  not  a  proper  question 
to  be  submitted  to  the  jury,  because  the  statute  did  not 
authorize  such  reference.' 

There  have  been  many  decisions  relative  to  crops  and  pro- 
visions.* 


1  Beatty  v.  Rankin,  139  Pa.  St.  358; 
distinguishing  Mitchell  v.  Coates,  47 
Pa.  St.  202. 

2  Rohrer  v.  Cunningham,  138  Pa 
St  162. 

s  Swope  V.  Ross,  29  Ark.  370. 

*  Provender  for  live-stock  has  been 
held  to  depend  for  its  exemption 
upon  its  owner's  having  such  stock. 
King  v.  Moore,  10  Mich.  538 ;  Cowan 
V.  Main,  24  Wis.  569.  Contra,  Kim- 
ball v.  Woodruff,  55  Vt.  229.  See 
Farrell  v.  Higley,  Hill  &  D.  87,  and 
Atkinson  v.  Catcher,  23  Ark.  103.  A 
farmer's  produce,  consisting  of  pota- 
toes, apples,  cabbage,  etc.,  which  he 
was  hauling  to  market  to  be  ex- 
changed for  goods  of  family  neces- 
sity, was  held  exempt.  Shaw  v.  Davis, 
55  Barb.  389.  See  Hall  v.  Penney,  11 
Wend.  44.  A  statute,  exempting  all 
necessary  meat,  fish,  flour  and  veg- 
etables actually  provided  for  family 
use,  was  held  not  to  include  wheat. 
Salsbury  v.  Parsons,  36  Hun,  12.  But 
meal  is  included  under  the  statutory 
exemption  of  flour.  Lashaway  v. 
Tucker,  61  Hun,  6.  When  there  is  a 
question  as  to  the  necessity  of  pro- 
visions, seed-wheat,  etc.,  it  should  be 
given  to  the  jury.  Howard  v.  Rug- 
land,  35  Minn.  388.  See  Murphy  v. 
Sherman,  25  Minn.  196.  If  the  stat- 
ute points  out  the  thing  exempt, 
there  is  no  need  of  the  debtor  to  se 


lect.  Zielke  v.  Morgan,  50  Wis.  560. 
As  to  seed-wheat,  see  Stilson  v.  Gibbs, 
46  Mich.  215.  As  to  garden  vegeta- 
bles: Carpenter  v.  Herrington,  25 
Wend.  370.  As  to  fruit  upon  trees. 
Roe  V.  Gemmill,  1  Houston  (Del.),  9. 
Waiver  of  exemption  is  forbidden  in 
some  states  with  respect  to  certain 
classes  of  articles  —  such  as  clothes, 
provisions  and  household  goods. 
Butler  V.  Shiver,  79  Ga.  172.  See 
Sasser  v.  Roberts,  68  Ga.  252.  Also, 
corn  unhusked.  Cochran  v.  Harvey 
(Ga.),  14  S.  E.  580.  "Provisions:" 
something  edible,  food,  or  raw  mate- 
rial needing  only  cooking.  A  cow  is 
not  included.  Wilson  v.  McMillan, 
80  Ga.  733.  See  Clement  v.  Lee,  47 
Ga.  626.  Food  prepared,  not  for  the 
debtor's  private  family  merely,  but 
for  his  boarders,  was  held  not  ex- 
empt. Coffey  V.  Wilson,  65  la.  270 ; 
Iowa  Code,  §  3072.  Groceries  in  stock 
for  sale  are  not  exempt  as  for  family 
use.  Nussberger  v.  Conner,  73  Mo. 
572;  Nash  v.  Farrington,  4  Allen, 
157.  Judgment  had  been  recovered 
for  necessaries  of  life  furnished  to 
the  defendant;  and  then  an  action 
was  brought  on  the  judgment,  which 
included  the  costs  of  the  first  suit 
with  the  amount  adjudicated.  Held. 
that  the  latter  was  not  a  suit  for 
"necessaries  furnished "  the  defend- 
ant's family,  in  the  sense  of  the  stat* 


818 


THINGS    P^XEMPT. 


Provisions  furnished  for  a  boarding-house  are  not  contem- 
plated under  the  phrase  "actual  necessities  of  life"  for  a 
family.  So,  a  debt  contracted  for  them  was  held  to  be  not 
governed  by  the  statute  relative  to  such  "  necessities."  The 
statute  (the  court  construing,  said)  "  has  reference  to  debts 
contracted  for  the  necessities  for  the  debtor  and  his  family, 
and  not  for  debts  incurred  in  carr^'ing  on  a  hotel  or  boarding- 
house  business." ' 

§  12.  Books,  Pictures,  Musical  Instruments,  etc..  Out- 
fits of  Fishermen  and  Miners,  etc..  Specially 
Exempted. 

Books:  Special  designation  of  the  family  bible  is  made  in 
several  states;  and,  in  one  or  two,  a  prayer-book  and  a  hymn- 
book  are  also  exempted.  School  books  and  books  in  family 
use  are  also  specified  in  several.-  The  libraries  of  professional 
men  are  exempt,  as  such,  in  some  statutes,  while  in  others 
they  are  protected  as  implements  with  which  the  debtor  earns 


ute.  Brown  v.  West,  73  Me.  23 ;  Bick- 
nell  V.  Trickey,  34  Me.  273 ;  Uran  v. 
Houdlette,  36  Me.  15 ;  Bangs  v.  Wat- 
son, 9  Gray,  211.  Statutes  exempting 
necessary  provisions,  etc. ,  are  con- 
strued so  as  to  include  tilings  not  ab- 
solutely essential  to  life.  Montague 
V.  Richardson,  24  Ct.  338 ;  Croker  v. 
Spencer,  2  D.  Chip.  68.  Perishable 
articles.  Dean  v.  King,  13  Ired.  20, 
24.  Stock-hogs,  pork  and  bacon. 
Byons  v.  Mount,  89  Tenn.  361;  17 
S.  W.  1037.  Cloth  left  with  a  tailor 
has  been  exempted  as  clothing,  per- 
haps ill-advisedly ;  it  might  more 
plausibly  be  classed  with  family  sup- 
plies. <SVe  Richardson  v.  Buswell,  10 
Met  (Mass.)  506. 

1  Lenhoff  v.  Fisher  (Neb.),  48  N.  W. 
821 :  Neb.  Civ.  Code  Proc,  §  531. 

2  In  Wisconsin  the  family  bible, 
school  books  and  "  the  library  of  the 
debtor  and  every  part  thereof."  Rev. 
Stat,  §g  2982-4.  In  Oregon  "books, 
pictures    and    musical    instruments 


owned  by  any  person,  to  the  value 
of  $75."  Code,  p.  613.  In  New  York 
books  and  pictures  to  the  value  of 
$50.  Code,  §  1390  (2).  Massachusetts 
has  the  same  limit  as  to  books.  In 
Missouri  the  bible  and  other  books 
used  in  the  familj\  In  Michigan 
"  the  library  and  school  books  of 
every  individual  and  family,  not  ex- 
ceeding $150  in  value."  Maine  ex- 
empts a  family  library  worth  $150, 
besides  school  books  and  bibles. 
Kansas  exempts  the  same,  without 
that  limitation.  Iowa,  "  all  private 
libraries."  Illinois,  bibles  and  school 
books  of  any  person,  in  addition  to 
other  property  to  be  selected  within 
a  limitation.  In  Delaware  the  fam- 
ily bible,  family  library  and  school 
books  are  exempt  In  Ohio  "  family 
books."  In  Coloi-ado  school  books 
and  library.  In  Arizona  school  books 
and  family  library,  to  $150.  And  in 
almost  every  state  there  are  provis- 
ions for  exempting  such  books. 


BOOKS,  rKTlKKP.   KTC,  SPFX'IALr.V    KXEMPTED.  819 

his  livelihood.'  There  is  a  limit  of  value  ])laced  upon  such 
libraries  in  some  states.- 

Onc  state  specially  exempts  books  presented  by  congress, 
or  the  lecj^islature  of  any  state.'  In  that  state,  circulatinsr 
libi-aries  are  excepted ;  but,  in  another,  books  belonging  to 
public  libraries  are  expressly  exempted.^  Books  and  papers 
pertaining  to  public  offices  are  protected  in  one  state  by  ex- 
press provision,*  while  in  others  they  doubtless  are  covered 
by  general  provisions.     Manuscripts  have  been  held   exempt.*' 

Pictures:  Family  portraits,  pictures  and  drawings  are  ex- 
tensively protected.  They  are  exempted  unqualifiedly  by 
some  statutes;  limited  in  value,  by  others;  confined  to  a  par- 
ticular description,  in  a  few.  "  Hanging  pictures,  oil  paint- 
ings and  drawings  drawn  or  painted  by  any  member  of  the 
family;  family  portraits  and  their  frames;"'  "family  pict- 
ures; "*"  portraits,  pictures  .  .  and  paintings  not  kept 
for  sale ; " "  pictures  which,  with  books  and  musical  instru- 
ments, are  limited  to  $75.'"  These  will  serve  to  show  the  usual 
provisions. 

It  has  already  been  mentioned  that  pictures  are  sometimes 
classified  with  household  goods  or  furniture;  and  doubtless 
they  may  be  selected  and  claimed  as  such  by  the  debtor  in 
making  up  his  list  within  his  monetary  limitation  of  such 
goods.  Where  he  has  the  specific  exemption  of  his  pictures  he 
would  be  relieved  from  selection  unless  there  is  limitation  as 
to  them  in  his  state  and  he  has  more  in  value  than  the  law 
allows  him  to  keep.  It  has  been  observed  that  oil  paintings 
and  drawings  are  designated  in  a  statute,  while  nothing  is 
said  of  water  colors  and  other  kinds  of  painting.  To  save  the 
latter,  it  might  be  convenient  to  select  them   as  part  of  the 

1  Roberts  v.  Moutly  (Neb.),  46  N.  W.        3  Rev.  Stat.  Wis.,  §  2983. 
1013,  4  Texas. 

2  Illustrations  :   lu  California,  $300  ;         &  Nevada. 

District  of  Columbia,  $300 ;    Idaho,  e  Dart  v.  Woodhouse,  40  Mich.  399. 

no  limit;  Vermont,  $200  (including  •  Cal.  Code  of  Prac,  §600;  Idaho 

instruments) ;   Mississippi,   $250.     In  Rev.  Stat.,  1887. 

Missouri  professional   persons    may  ^  Colorado,  Delaware,  Kansas,  Min- 

select  books  necessary  to  their  call-  nesota.  New  Mexico,  New  York,  Ohio, 

ing,  in  lieu  of  other  things.     Several  Texas,  Wisconsin,  etc. 

other  states  exempt  professional  li-  ^  Iowa. 

braries,  some  with  and  some  without  '"  Oregon  Code,  p.  613. 

restrictions. 


820  THINGS    EXEMPT. 

furniture  when  that  course  is  allowable.  Whether  "  family 
pictures  "  is  a  phrase  broad  enough  to  include  a  painting  by 
any  great  artist  whose  works  are  very  valuable,  quere. 

Ifusical  instruments:  A  musical  instrument  may  be  also 
an  article  of  furniture ;  a  piano,  for  instance ;  and  it  may  be 
selected  as  furniture  when  it  is  not  expressly  exempt  as  such 
instrument.  Musical  instruments  which  do  not  serve  to  fur- 
nish a  parlor  or  the  room,  such  as  violins,  harps,  etc.,  have 
not  the  double  means  of  escaping  execution. 

Sewing-machines,  etc.:  Looms,  sewing-machines,  knitting- 
machines  and  spinning-wheels  are  frequently  found  among 
specific  exemptions,  while  they  are  also  tools  or  instruments 
susceptible  of  being  selected  and  claimed  under  general  ex- 
emptions of  chattels  to  a  given  amount. 

Pews,  etc.:  Pews  in  churches,  used  by  debtors  and  their 
families,  are  specifically  exempted  in  many  states.  It  has 
been  held  that  the  communion  service  belonging  to  a  church 
was  not  liable  to  execution  under  a  judgment  obtained  against 
the  trustees  for  the  pastor's  salary.^  Lettered  gravestones  are 
specially  exempt  in  one  state.-     Tombs  are  so  in  severaL 

Fire-arms:  Arms  are  enumerated  among  the  specific  ex- 
emptions in  some  statutes ;  as  "  one  musket  or  rifle,  or  a  shot 
gun ; " '  "  all  arms  and  accoutrements ; "  *  "  all  arms  and  military 
equipments  required  by  law  to  be  kept;"^  "a  sword,  horse, 
medal,  emblem  or  device  of  any  kind,  presented  as  a  testimo- 
nial for  service  rendered  in  the  military  or  naval  service  of 
the  United  States;  and  the  uniforms,  arms  and  equipments 
which  were  used  by  a  person  in  that  service." "  When  arms  are 
not  specifically  exempt,  they  are  liable,  unless  selected  as  part 
of  the  personalty  under  a  statute  allowing  the  debtor  to  chose 
from  any  kind  of  it,  to  a  given  value.  If  one  kind  of  arm  is 
expressly  exempted  another  kind  is  excluded  by  omission.^ 

Boats:  Fishermen  and  others  requiring  the  use  of  boats, 
and  their  accompanying  trappings,  are  favored  by  the  statutes 
of  several  states.  A  few  examples  may  suffice,  as  follows : 
"  There  is  exempted  to  a  person  engaged  in  lightering  for  his 

iLord  V.   Hardie,  82    N.   C.  241;        <  Michigan. 
Stith  V.  Lookabill,  76  N.  C.  465.  »  Missouri. 

8  Missouri  6  N.  Y.  Code,  §  1393. 

» Iowa,  Oregon.  7  Choate  v.  Redding,  18  Tex.  579. 


BOOKcJ,  PICTURES,  ETC.,  Sl'ECIALLY    EXEMPTED.  b21 

support,  one  or  more  lighters,  barges  or  scows,  and  a  small 
boat  with  oars,  sails  or  rigging,  not  exceeding  in  the  aggre- 
gate $250  coin  value;  and  to  all  persons,  a  canoe,  skiff  or 
small  boat,  with  its  oars,  sails  and  rigging,  not  exceeding  $50 
in  coin ; "  ^  "  the  boat,  fishing  tackle  and  nets  of  fishermen 
actually  used  by  them  in  the  prosecution  of  their  business,  to 
the  value  of  $100; "^  "one  boat  not  exceeding  two  tons  bur- 
den ; "  ^  "  one  boat  used  in  fishing,  not  exceeding  $200  in 
value."  ^ 

Miners'  outfit:  In  some  of  the  mining  states  not  only  the 
cabin  of  the  miner  to  the  value  of  $500  is  protected  but  also 
his  necessary  apparatus  to  a  like  sum,  together  with  the  horses 
needed,  and  provender  for  them  for  a  given  time.  Among 
the  implements  enumerated  as  necessary  are  a  windlass,  der- 
rick, car,  pump  or  hoisting  gear  and  hose."* 

Public  personalty:  The  chattels  of  municipal  and  other 
public  corporations,  such  as  books,  furniture,  etc.,  are  rendered 
exempt  by  some  of  the  state  statutes.  In  the  absence  of  ex- 
press statutory  exemption,  they  may  be  protected  from  forced 
sale  because  necessary  for  governmental  purposes. 

There  is  exemption  of  other  personalty,  such  as  wages,  in- 
surance money,  choses  in  action  and  interests,  which  are  rele- 
gated to  the  next  chapter. 

1  Code  of  Washington,  §  342  ef  limits  the  tools  to  $200 ;  Gen.  Stat  of 
seq.  Nev. ;  Deering's  Code  &  Stat.  Cal.,  in 

2  Massachusetts.  which,  besides  $500  for  the  cabin, 
'  R.  S.  Me.,  ch.  81.  and  $500  for  the  tools,  there  is  an  ad- 
*  Connecticut  ditional  $1,000  exempted  as  the  maxi- 
^See    Comp.    State  of    Montana,     mum  value  of  the  miner's  derrick 

1887 ;  R   S.   of  Idaho,   1887,  which    worked  by  himself. 


CHAPTER  XXVI. 


INCORPOREAL  THINGS  AND  MONEY. 


g  1.  Exemptible  Interests. 
2.  Wages  of  Laborers  and  Othera 
8.  Wages,  Salaries  and  Earnings. 

4.  Choses  in  Action. 

5.  Set-off  Against  Exempt  Choses 

in  Action. 

6.  Money  Deposited. 

7.  Fire  Insurance  Money. 


5  8.  Life  Insurance  Money. 
9.  Pension  Money  and  Its  Invest- 
ment. 

10.  Pension  Money  in  Transit 

11.  The  United  States  Pension  Act : 

Whether    it  Exempts    Accu- 
mulations from  the  Money. 


§  1.  Exemptible  Interests. 

While  there  can  be  no  incorporeal  homestead,  there  may  be 
exemption  of  interests  in  realty.^  Whatever  may  be  sub- 
jected to  execution  is  susceptible  of  exemption.  There  are 
many  intangible  things  which  may  be  subjected  to  execution : 
credits,  stock  in  banks  and  other  corporations,  shares  in  part- 
nership property,  rights  in  an  estate,  and  generally  all  legal 
claims.  There  are  some  such  things  which  cannot  be  sub- 
jected to  execution :  rights  of  way,  servitudes  of  various  sorts, 
all  proprietary  rights  which  are  inalienable.  In  the  civil 
law,  res  incorporates  are  those  which  are  apprehended  men- 
tally—  not  by  the  touch  or  by  ocular  inspection;  and  the 
examples  above  given  will  illustrate  the  class.  But  the  Roman 
jurists  carried  their  idea  of  such  things  to  a  degree  of  refine- 
ment not  necessary  to  the  present  purpose. 

Because  execution  and  exemption  are  correlative,  it  must 
not  be  inferred  that  the  legislator  has  exempted  all  impalpable 
property  which  is  liable  to  execution,  or  has  rendered  it  ex- 
emptible to  a  degree.  We  must  look  to  the  statutes  to  find 
what  he  has  done  in  this  respect  —  not  to  theories  or  to  what 
he  may  do  consistently  with  legal  philosophy.  With  the  ex- 
ception of  wages,  there  is  scarcely  any  incorporeal  thing  which 
is  actually  made  specifically  exempt  in  the  statutes  generally; 
and  this  exemption  is  always  under  limitation  of  time  or 

1  Ante,  pp.  6,  121,  131-140. 


WAGES    OF    LADOKEKS    AM)    oiriERS.  828 

amount.  Other  such  things  are  exemptible,  upon  selection, 
under  the  privilege  of  retaining  personalty  to  a  certain  value. 
They  are  so  not  nicrely  when  mentioned  in  the  statute  —  a 
rare  occurrence  —  but  wlien  covered  by  a  provision  of  general 
tenor  which  fairly  may  be  construed  to  include  them.  There 
is  no  reason  why  a  debtor  may  not  claim  his  interest  in  a 
business  venture,  his  shares  in  a  corporation,  his  claims  and 
credits  due  him  by  others,  as  well  as  he  may  claim  any  ren 
corporalis^  under  such  general  provision.  There  is  no  reason 
why  his  interest  in  a  partnership  may  not  be  selected  as  the 
personal  property  which  he  wishes  to  save  when  execution  is 
pending  and  that  interest  is  liable  to  forced  sale.  Hereafter 
it  will  be  shown  that  partnership  property  is  neither  exempt 
nor  exemptible,  upon  the  claim  of  a  member  of  the  firm  or  of 
the  firm  itself;  but  the  interest  which  a  member  has  in  the 
partnership  is  his  own  })ersonal  property,  and  may  be  claimed 
by  him  as  exempt,  under  the  general  provision  above  men- 
tioned, whenever  that  interest  is  about  to  be  subjected  to 
forced  sale.  If  it  is  all  he  has ;  or  if  it  is  a  part  of  what  he 
may  select  from,  there  seems  to  be  no  obstacle  to  his  having 
it  exempted,  upon  claim  and  selection,  to  the  degree  of  value 
fixed  by  the  statute  of  his  state. 

§  2.  Wages  of  Laborers  and  Others. 

It  is  common,  in  the  several  states,  to  exempt  the  sum  due 
for  wages  of  laborers  for  the  last  month  or  more  prior  to  at- 
tachment or  the  levy  of  execution.  Some  of  the  states  have 
statutes  broader  than  others  with  respect  to  this  species  of 
exemption ;  some  include  the  personal  earnings  of  the  debtor 
though  they  may  not  come  under  the  denomination  of  wages, 
but  the  common  laborer's  daily,  weekly  or  monthly  moil  is 
generally  protected  in  all.^ 

The  word  lahorers  designates  large  classes  of  persons,  en- 

1  Wages  are  usually  exempt  either  Kan.  583 ;  Enzor  v.  Hurt,  76  Ala. 
up  to  a  certain  sum,  or  back  to  a  cer-  595.  The  last  month's  wages  being 
tain  date  or  for  a  certain  time ;  as,  exempt,  they  were  kept  within  the 
one  month,  or  three  months  before  time  and  amount  by  the  garnishee's 
the  levy,'attachmentor  garnishment,  paying  to  the  employe  after  garnish- 
or before  the  date  of  collection,  as  the  meut,  which  the  court  did  not  disap- 
statute  may  provide.  Haynes  v.  Hus-  prove.  Davis  v.  Meredith,  48  Mo.  3G3 ; 
sey.  72  Me.  448 ;  Seymour  v.  Cooper,  Bliss  v.  Sinith,  78  111.  359 ;  Hoffman 
26  Kan.  539;  Harding  v.  Hendrix.  26  v.  FitzAvilliam.  81  111.  521. 


824  INCORPOBEAL  THINGS  AND  MONET. 

gaged  in  a  great  variety  of  employments;  such  as  farm  hands, 
wood  choppers,  coal  heavers,  hod  carriers,  team  drivers,  cooks, 
chamber  maids,  sailors,  roustabouts,  and  the  like.^  There  are 
many  other  classes  composed  of  men  who  work  with  their 
hands  for  a  living,  but  whose  right  to  the  privileges  of  a  la- 
borer—  when  the  sheriff  comes  —  is  sometimes  questioned.* 
Ordinarily,  the  manual  worker  is  a  laborer;  and  the  sense  in 
which  the  word  lahorer  is  employed  in  conversational  English 
is  that  which  it  has  in  the  more  stilted  verbiage  of  statutes. 
This  use  would  cut  off  many  industrious  and  deserving  claim- 
ants of  exemption  for  personal  earnings,  where  the  statute 
favors  only  the  wages  of  laborers.'^ 

There  has  been  a  disposition  to  favor  railroad  and  steam- 
boat engineers,  traveling  merchants,  clerks,  and  many  others 
in  responsible  and  genteel  employments,  by  drawing  a  line 
between  them  and  persons  in  kindred  employments  who  work 
under  contract.  Clerks,  book-keepers,  secretaries,  amanuenses^ 
typewriters  and  other  like  employes  whose  pay  is  periodical, 
and  whose  service  is  not  rendered  under  contract  of  such  a 
character  as  to  take  them  out  of  the  class  of  wage-earners, 
have  been  accorded  the  benefit  of  laws  saving  wages  from  the 
process  of  garnishment.'* 

1  Seamen,  on  an  Atlantic  coasting  ^  In  this  sense,  livery-stable  keep- 
voyage,  cannot  claim  the  exemption  ers,  itinerant  agents,  commercial 
of  their  wages  from  garnishment  or  travelers,  engineers,  clerks  in  stores, 
trustee  process,  in  Massachusetts  and  etc.,  are  not  "  laboring  "  men.  Epps 
Maine.  White  v.  Dunn,  134  Mass.  271 ;  v.  Epps,  17  111.  App.  196;  Jones  v. 
Eddy  V.  O'Hara,  132  Mass.  56 ;  Ayer  Avery,  50  Mich.  326 ;  Powell  v.  El- 
V.  Brown,  77  Me.  195 ;  Staples  v.  dred,  39  Mich.  552 ;  Dove  v.  Nunan, 
Staples,  4  Me.  532.  Compare  McCarty  62  Cal.  399  ;  Brusie  v.  Griffith,  34  Cal. 
V.  Steamer  New  Bedford,  4  Fed.  818.  202 ;  S.  C,  91  Am.  Dec.  695 ;  Coffin 
This  rule  does  not  prevail  in  New  v,  Reynolds,  37  N.  Y.  640 ;  Aikin  v. 
York.  See  Ross  v.  Bourne,  14  Fed.  Wasson,  24  N.  Y.  482 ;  Short  v.  Med- 
858.  berry,  29  Hun,  39 ;  Dean  v.  De  Wolf, 

2  Whether  one  is  a  "  laboring  man  "  16  Hun,  186 :  Krauser  v.  Ruckel,  17 
within  the  meaning  of  the  phrase  is  Hun,  463 ;  Eviesson  v.  Brown,  38 
a  question  of  law  after  the  character  Barb.  890.  Contra:  Wdliams  v.  Link, 
of  the  service  done  has  been  estab-  64  Miss.  641.  In  Minnesota,  the  title 
lished  by  evidence.  Wildner  v.  Fer-  of  an  act  to  exempt  the  wages  of  la- 
guson,  42  Minn.  112.  A  "laboring  borers  was  held  to  include  those  of  a 
man "  is  one  engaged  in  manual  telegraph  operator.  Bo5de  v.  Van- 
work.    Wakefield  v.  Fargo,  90  N.  Y.  derhoof,  45  Minn.  31. 

213;  Williams  v.  Link,  64  Miss.  641.        *  Abrahams  v.   Anderson,   80  Ga. 


WAGES,  SALARIES    AND    EARNINGS.  825 

§  3.  Wages,  Salaries  and  Earnings. 

The  existence  of  a  contract,  or  not,  is  no  criterion  by  which 
to  determine  whether  one  is  a  laborer  workinrj  for  wa^es.  A 
common  scavenger  may  operate  under  a  contract  to  have  a 
daily  stipend ;  a  "railroad  king"  may  work  hard  manually 
without  a  contract.  Why  not  construe  the  words  lahorer  and 
wages  as  they  are  always  understood  in  common  parlance? 
So  understanding,  the  clerk,  book-keeper,  commercial  traveler, 
typewriter,  telegraph  operator,  and  the  like,  are  not  laborers, 
and  their  pa\'  not  wages,  whether  working  under  contract  or 
not.  Therefore,  to  save  them  something  of  their  earnings 
from  execution,  other  expressions  should  be  found  in  the  stat- 
ute than  those  above  noticed.  Wh}^  not  say  clerk's  wages? 
Or,  better,  employ  a  term  that  Avill  include  all  the  wage- 
earners  who  are  not  manual  workers?  Or  cover  it  all  under 
laborers  and  other  wage-earners.  A  term  of  that  kind  would 
not  include  one  working  for  a  share  of  profits  under  a  con- 
tract to  that  effect,  since  he  could  not  be  called  properly  the 
clerk  of  the  other  contracting  party,'  nor  a  wage-earner.  It 
w^ould  include  one  traveling  for  a  firm  for  monthly  pay,  by 

570,  citing  Lemar  v.  Chisholm,  77  earnings  have  been  held  exempt  when 
Ga.  306;  Sanner  v.  Shivers,  76  Ga.  not  wages.  Banksv.  Rodenbach,  541a. 
835 ;  Smith  v.  Johnston,  71  Ga.  748 ;  695.  One's  wages  may  be  attached  in 
Hightower  v.  Slaton,  54  Ga,  108:  a  suit  against  him  for  his  own  board. 
Claghorn  V.  Saussy,  51  Ga.  576 ;  But-  Smith  v.  McGiuty,  101  Pa.  St  402. 
ler  V.  Clark,  46  Ga.  466 ;  Caraker  v.  See  Raschert  v.  Kunz,  9  Mo.  App. 
Matthews,  25  Ga.  571.  Com.pare'Kjle  283.  As  to  according  exemption  to 
V.  Montgomery,  73  Ga.  337,  in  which  the  debtor  in  Illinois  from  any  money, 
the  court  declared  that  it  would  hesi-  salary  or  wages  due  him  or  her  from 
tate  to  hold  that  clerks  in  stores,  any  person  or  persons  or  corpora- 
overseers,  etc.,  are  to  be  classed  with  tions,  see  Illinois  act  of  May  24,  1877, 
wage-earners  whose  wages  are  pro-  §1;  Finltn  v.  Howard,  126  111.  259; 
tected  from  garnishment,  were  the  distinguishing  Fanning  v.  Nat.  Bank, 
question  new ;  and  that  it  would  not  76  111.  53. 

further  extend  the  rulings  already  i  A  salesman,  paid  a  share  of  the 

made  on  this  subject  in  previous  cases,  net  profits  and  bearing  half  the  losses, 

A  boarding-house  keeper,  by  his  per-  by  contract  with  the  firm  for  which 

sonal    service  in   his    business,  does  he  sold,  was  not  a  clerk  entitled  to 

not  become  a  wage-earner  so  as  to  be  the  benefits  of  a  statute  exempting 

entitled  to  have  dues  for  board  ex-  clerk's  wages    from   execution,   and 

empt    Shelley  v.  Smith,  59  la.  453.  the  wages  of  "  other  persons  of  that 

See  Smith  v.  Brooke,  49  Pa  St.  147.  kind."     Brierre  v.  Creditors,  43  La. 

In  Iowa,  however,  dues  for  personal  Ann.  423. 


826  INCOKl'OUKAl,    THINGS    AND    MONEV. 

agreement,  on  a  contract  to  pay  a  debt  to  his  employers  in 
this  way,' 

Warjes  and  salary  are  terms  never  confounded  with  each 
other  when  the  pay  for  earnings  of  manual  laborers  is  meant 
on  the  one  hand,  and  that  of  clergymen  and  officials  on  the 
other.  But  there  is  a  middle  line  of  money-earners,  such  as 
clerks,  book-keepers,  and  salesmen,  whose  pay  is  sometimes 
called  wages  and  sometimes  salary.  We  would  not  understand 
the  former  term,  used  in  a  statute,  as  including  the  salaries  of 
preachers,  professors,  corporation  officers  and  public  officials, 
nor  would  we  ever  apply  the  latter  to  the  compensation  of  a 
farm  hand  or  mechanic's  employe.  The  salary  of  a  teacher 
has  been  held  exempt,  under  different  views  (some  scarcely 
tenable),^  but  it  ought  not  to  be  so  held  under  the  phrase 
"laborer's  wages"  unqualified. 

When  the  legislator  means  salary  he  should  say  so ;  when 
he  means  wages  he  should  say  so,  as  the  words  are  understood 
well  enough ;  but  he  should  qualify  when  he  has  reference  to 
the  compensation  of  that  class  above  mentioned  which  often 
has  either  term  used  to  express  it.  With  such  legislation,  there 
would  be  no  need  of  the  unsatisfactory  rule  dependent  upon 
the  terms  of  employment. 

Either  wages  or  salary  may  be  exempt  under  certain  cir- 
cumstances and  liable  under  others.*  Sometimes  they  turn 
upon  a  question  of  residence ;  ^  sometimes  upon  family  head- 

1  A  debtor,  the  head  of  a  family,  port  Spengler  v.  Kaufman,  43  Mo. 
owing  seven  hundred  dollars  to  a  App.  5 ;  distinguishing  Whitehead  v. 
firm,  agreed  to  travel  for  them  in  Tapp,  69  Mo.  415,  and  Brown  v. 
consideration  of  a  hundred  dollai's  Brown.  68  Mo.  388.  Even  the  wages 
per  month  and  his  expenses  —  half  of  of  a  laborer,  though  exempt  gener- 
the  salary  to  count  on  the  debt.  He  ally,  may  be  attached  for  his  board- 
served  two  months,  then  sued  his  bill,  under  some  statutes.  Weisman 
creditors  and  recovered  $100.  Deer-  v.  Weisman,  133  Pa  St.  89 ;  Pa.  Act 
ing  V.  Rufifner  (Neb.),  49  N.  W.  771.  April  4,  1889,  P.  L.  23. 

2  Teacher's  salary  likened  to  that  of  *  In  Illinois  the  wages  due  a  non- 
a  public  officer,  and  held  exempt,  resident  head  of  family  were  held 
Allen  V.  Russell,  78  Ky.  105.  See  exempt.  Mineral  Point  R.  Co.  v. 
Schwacke  v.  Langton,  12  Phila.  402.  Barron,  83  111.  365 ;  111.  Glass  Co.  v. 

3  The  salary  of  a  husband  without  Holman,  19  111.  App.  30 ;  Buckingham 
children,  who  was  separated  from  v.  Fisher,  70  111.  121.  And  in  Ala- 
his  wife,  was  not  exempt  as  against  bama  it  was  held  that  the  removal  of 
her  judgment  against  him  for  sup-  a  resident  to  another  state  did  not 


WAGES,  SALARIES    AND    EAKNINOS.  82T 

ship,  though  the  head  of  the  body  be  abroad ; '  sometimes 
upon  recording,  when  the  laborer  is  a  commorant,'  Persons 
making  their  livelihood  and  supporting  their  families  by  per- 
sonal exertions  are  accorded  exemption  under  various  forms 
of  expression  giving  rise  to  no  discussion  as  to  the  terms  above 
discussed.  For  instance,  the  earnings  of  a  photogra])her,  by 
his  own  hands,  during  sixty  days  ])receding  suit  against  him, 
were  saved  to  him  from  execution  on  his  showing  them  to 
be  necessary  to  his  family's  support.'  Earnings  of  other  delat- 
ors have  been  protected  under  statutes  saving  them  for  family 
maintenance.'* 

It  has  been  held,  under  statute  construction,  that  in  a  suit 
by  a  laborer  to  recover  wages,  the  defendant  (who  was  his 
employer)  could  not  have  a  judgment  against  the  plaintiff, 
which  had  been  assigned  to  him  before  the  laborer's  suit  was 
instituted,  allowed  as  a  set-off.'* 

While  wages  are  thus  highl}^  favored  by  the  law  when  cred- 
itors seek  to  subject  them  to  the  payment  of  the  laborer's 
debts,  they  are  no  less  so  when  the  suit  is  by  him  to  recover 
the  price  of  his  labor.  The  statutes  of  some  states  inhibit  ex- 
emption to  defeat  a  claim  for  wages.  And  such  a  statute  has 
been  held  constitutional.  Personal  property  of  a  certain  de- 
scription may  be  generally  exempt,  yet  liable  to  execution  un- 
der a  judgment  in  a  suit  for  wages.  This  does  not  violate  the 
requirement  of  uniformity,  and  is  not  class  legislation." 

work  the  loss  of  his  right  to  cliattel  83  Me.  412 ;  Me.  R.  S.,ch.  Ill,  §  6.  See 

exemption,  if  his  claim  was  pleaded  Wright  v.  Smith,  74  Me.  49o ;  Ames 

before  he  left.    McCrary  v.  Chase,  71  v.  Winson,  19  Pick.  248. 

Ala.  540.  3  McSkimin  v.  Knowlton,  14  N.  Y. 

1  The  laborer  may  be  supporting  S.  283. 

his  family  in  Canada,  yet  be  the  head  *  Exempting     the    earnings    of    a 

of  it  in  the  sense  necessary  to  entitle  debtor  was  held  to  include  the  earn- 

hlm  to  the  exemption  of  his  wages  in  ings  of  his  team,  wages,  dray,  etc. 

Michigan.    Pettit  v.  Booming  Co.,  74  Kuntz  v.  Kinney,  33  Wis.  510.     Net 

Mich.  214.  proceeds  of  business  held  to  be  "  earn- 

2  A  laborer,  temporarily  residing  at  ings."'  Brown  v.  Hebard,  20  Wis. 
his  working  place,  is  a  commorant  344.  The  statute  extends  to  the  earn- 
in  the  sense  of  the  statute  which  re-  ings  of  professional  men.  McCoy  v. 
quires    comniorants    to   have    their  Cornell.  40  la.  457. 

claim  to  wages  recorded  at  such  place        ^  Post,  §  5. 

to  make  their  assignment  of  it  good        ^  McBride  v.  Reitz,  19  Kan.  123. 

against  attachment.    PuUen  v.  Monk, 


828  INCOKPOKEAL  THINGS  AND  MONEY. 

§  4.  Choses  in  Action. 

A  chose  in  action  may  bo  exempted  by  law.  "An  exemp- 
tion can  be  set  apart  to  a  debtor  in  choses  in  action  as  well 
as  any  other  species  of  property,  .  .  .  and,  when  so  set 
apart,  is  free  from  judicial  interference."^  Under  the  ex- 
emption of  personal  property,  is  a  chose  m  action  included? 
That  is,  does  the  term  personal  property  embrace  clioses  in 
action?  Generally  speaking,  it  does,  unquestionably;  but  the 
question  was  raised  whether  a  constitutional  provision,  that 
"  the  personal  property  ...  to  the  value  of  $1,000  .  .  . 
shall  be  exempted  from  sale  on  execution  ,  .  ."  embraced 
a  chose  in  action  not  subject  to  levy  and  execution.  There 
was  no  answer  by  the  court,  because  money —  not  a  chose  in 
action  —  was  the  thing  sought  to  be  subjected  to  the  satis- 
faction of  the  judgment  in  the  case  at  bar.^  But  the  question 
does  not  seem  difficult ;  for,  though  choses  in  action,  consid- 
ered as  property,  are  certainly  personal,  only  those  kinds  of 
personalty  which  would  otherwise  be  liable  to  execution  can 
be  meant  when  their  exemption  is  provided  for  in  a  constitu- 
tion or  statute.^    When  a  chose  in  action  has  been  set  apart 

1  Leggett  V.  Van  Horn,  76  Ga.  795 ;  notes     belonging    to     a     decedent. 

Jolly  V.  Lofton,  61  Ga.  154;  Frost  v.  wliich    the  widow  was  allowed  to 

Naylor,   68    N.   C.    325 ;    Ballard    v.  select    under    a    statute    exempting 

Waller,  7  Jones  (N.  C),  84.  personal  property  not  exceeding  in 

2 Leggett    V.    Van     Horn,    suprcu  value    one    thousand    dollars;    the 

Money  and    credits   were    held  ex-  court  observing  that  there  was  'no 

empt    as    personal    property    under  indication  of  a  purpose  to  confine 

Ohio  Stat.  (S.  &  C.)  1146,  in  the  case  her  to  any  kind  or  species  of  per- 

of  Chilcote  v.  Conley,  36  O.  Stat.  545.  sonal  property.'    And  in  Borden  v. 

3  The  supreme  court  of  Alabama,  Bradshaw,  68  Ala.  362,  it  was  held 
in  discussing  the  question  whether  to  include  a  chose  in  action  for  dam- 
the  phrase  personal  property,  as  ages  resulting  from  negligence  in 
used  in  the  constitution  and  stat-  the  conduct  of  a  ferry.  We  have 
ute  of  that  state,  can  be  construed  often  decided  that  our  exemption 
to  embrace  choses  in  action,  said  laws  ,  .  .  were  to  be  liberally 
that  the  question  "  has  been  many  construed ;  and  such  a  rule  of  con- 
times  decided  in  the  affirmative  by  struction  necessarily  induces  us  to 
the  court.  In  Williamson  v.  Harris,  attach  to  the  phrase  '  personal  prop- 
57  Ala  40,  it  was  said  that  the  erty,'-  as  used  in  those  laws,  a  com- 
phrase  was  used  '  in  its  broadest  and  prehensive  signification.  It  was,  in 
largest  sense,'  and  included  money  our  judgment,  intended  to  embrace 
in  the  hands  of  a  garnishee.  In  everything  which  is  the  subject  of 
Darden  v.  Reese.  62  Ala.  311,  it  was  ownership,  not  being  realty  or  an 
consti-ued    to    embrace    promissory  interest  in    realty.     The  words  are 


SET-OFF   AGAINST    EXEMPT   0H08ES    IN    ACTION.  829 

as  exempt  (as  a  sum  bequeathed  to  the  debtor  by  liis  fatherj, 
it  is  free  from  administration  and  judicial  disposition.  Of 
such  a  bequest  it  was  judicially  said :  "The  court  had  no 
jurisdiction  under  the  allegations  of  the  bill  to  interpose  by 
injunction  or  receiver.  The  exemption  was  allowed  for  the 
benefit  of  the  debtor  and  to  the  detriment  of  the  creditors; 
and  when  properly  set  apart  the  courts  have  no  jurisdiction 
to  interfere  therewith  at  the  instance  of  creditors.     .     .     ."  ^ 

§  5.  Set-off  Against  Exempt  Choses  in  Action. 

In  a  suit  upon  a  promissory  note,  the  defendant  pleaded,  as 
set-off,  a  debt  due  to  him  by  the  plaintiff.  The  plaintiff  re- 
plied by  claiming  that  the  note  was  exempt.  There  was  judg- 
ment for  the  plaintiff;  the  note  was  held  exempt,  and  the  set- 
off was  not  allowed,^  This  decision  was  rendered  under  the 
general  statutory  provision:  "Property,  not  exceeding  in 
\alue  six  hundred  dollars,  owned  by  any  resident  householder, 
shall  not  be  liable  to  sale  on  execution  or  any  other  final  pro- 
cess." '  A  later  decision  under  this  provision,  accordant  with 
that  above  cited,  contains  the  following  statement  of  the  ques- 
tion at  issue,  by  the  court :  "  The  principal  matter  in  dispute 
between  the  parties  is  whether  or  not  the  appellee,  under  the 
pleadings  and  proof,  was  legally  entitled  to  claim  the  benefit 
of  the  statutory  exemption  of  $600  as  against  the  judgment 
pleaded  by  the  administrator,  as  a  set-off,  in  the  third  para- 
graph of  the  answer.  The  question  presented  is  this :  Where 
an  action  is  brought  on  an  open  account,  for  work  and  labor, 
or  for  goods  sold  and  delivered,  or  for  money  loaned,  and  the 
defendant  in  his  own  name  pleads  a  set-off  to  the  account,  in 
the  form  of  a  judgment  previouslv  obtained  by  the  said  de- 
fendant against  said  plaintiff,  can  the  plaintiff,  .  .  .  who 
w^ould  be  entitled  to  the  benefit  of  the  exemption  on  execu- 
tion, legally  plead  the  same  in  his  reply,  and  have  the  claim 

declared  by  the    Code    to    include  of  $500  was  allowed  to  claim  it  out 

'money,  goods,   chattels,   things    in  of  his  share  of  an   intestate's  per- 

action  and  evidence  of  debt,  deeds  sonal  estate. 

and  conveyances.'    Code,  1876,  §§  1,  i  Leggett  v.  Van  Horn,  76  Ga.  795. 

2."     Enzor  v.  Hurt,  76  Ala.  595.     In  "^  Smith  v.  Sills,  126  Ind.  205;  25  N. 

Swandale  v.  Swandale,  25  S.  C.  389,  K  881.     See  Junker  v.  Hustes,  113 

the  head  of  a  family  who  was  en-  Ind.  534. 

titled  to  exemption  to  the  amount  3  Rev.  Stat  of  Indiana  (1881),  §  703. 


830 


iNCORPOHKAr,  Tnixas  and  money. 


wliicli  he  holds,  and  on  which  he  seeks  to  recov^er,  set  off  to 
him  as  exempt  from  sale  or  seizure?" 

It  will  be  observed  that  this  question  puts  the  statute  to  a 
greater  strain  than  did  that  of  the  preceding  case ;  for  here 
the  action  was  on  an  open  account  —  partly  for  goods  sold  to 
the  defendant  —  not  on  a  promissory  note;  and  the  set-ofT 
was  that  of  a  judgment,  not  an  unadjudicated  claim  of  in- 
debtedness. Had  this  question  been  wholly  pristine,  a  clear 
distinction  might  have  been  drawn  between  it  and  the  other. 
It  was  treated  by  the  court,  however,  as  settled  by  prior  de- 
liverances, the  set-off  was  disallowed,  and  the  judgment  cred- 
itor was  condemned  to  pay,  with  his  adjudicated  claim  left 
unpaid.'  The  court  thus  disposed  of  the  argument  that  the 
competitive  debts  had  canceled  each  other  and  had  become 
extinct  by  confusion :    "  The  proposition    of  appellant  that, 


1  Coppage  V.  Gregg  (Ind.).  27  N.  E. 
570.  Reiuhard,  J.,  for  the  court :  "  It 
has  been  decided  repeatedly  that 
where  an  insolvent  debtor  holds  a 
judgment  for  Jess  than  the  amount 
exempt  by  statute,  and  that  judg- 
ment is  all  the  property  he  owns,  the 
judgment  defendant  will  not  be  al- 
lowed to  satisfy  it  by  a  set-off  of 
another  judgment  which  the  latter 
holds  against  him.  Puett  v.  Beard, 
86  Ind.  172;  Butner  v.  Bowser,  .su- 
pra; Junker  v.  Hustes,  supra.  We 
can  see  no  distinction  in  principle 
between  the  question  determined  by 
these  cases  and  the  one  now  under 
consideration.  We  know  of  no  rule 
which  prescribes  to  the  debtor  what 
kind  of  property  he  shall  or  shall  not 
claim  as  exempt.  If  he  can  claim  as 
exempt  a  judgment  of  which  he  is 
the  owner,  no  good  reason  can  be 
shown  why  he  cannot  with  equal 
propriety  claim  an  account  or  a  note 
or  any  other  chose  in  action.  One 
is  as  much  '  property '  as  the  other, 
and  the  same  rule  of  law  is  appli- 
cable to  both.  See  Pickrell  v.  Jerav^ld, 
ante,  483  (decided  at  the  present  term 
of  this  court).     The  appellant  argues 


that  '  if  exemption  as  against  a  set- 
off may  be  claimed,  then  a  plaintiff, 
although  worth  a  million  dollars, 
may  claim  exemption  of  his  claim  as 
against  a  set-off.  and  thus  defeat  the 
defendant,  and  amerce  him  in  costs, 
although  equity  and  good  conscience 
requires  the  plaintiff  to  pay  them.' 
There  would  be  nmch  force  in  this 
argument  if  the  law  permitted  a 
millionaire  to  claim  the  exemption 
in  such  cases;  but  it  only  permits 
this  to  be  done  by  a  party  whose  en- 
tire property,  including  the  judgment 
or  other  thing  claimed  as  exempt, 
does  not  exceed  in  value  $600.  Car- 
penter V.  Cool.  115  Ind.  134;  17  N.  E. 
Rep.  266.  We  hold,  therefore,  that 
the  appellee  had  the  right  under  the 
statute  to  demand  as  exempt  the 
claim  which  he  held  against  the  es- 
tate of  the  appellant's  decedent  We 
think  the  proceeding  against  him  by 
set-off  was  such  '  final  process '  as 
was  contemplated  by  the  framers  of 
the  act  We  believe  the  decisions  of 
our  own  state,  as  well  as  the  weight 
of  other  American  authorities,  fully 
sustain  this  conclusion." 


SET-OFF   AGAINST   EXEMPT   CH08E8    IN   ACTION.  831 

where  there  are  mutual  outstanding  claims  of  two  parties, 
they  extinguish  each  other  pro  tanto,  though  correct  as  to  an 
abstract  statement  of  law,  can  have  no  application  here,  where 
property  is  chiimed  as  exoin})t  from  sale  or  seizure.  Tiie  equi- 
table or  civil-law  doctrine  of  com])ensation  cannot  be  invoked 
to  strike  down  a  plain  constitutional  and  statutory  right  guar- 
antied to  the  impoverished  houseiiolder.  The  cases  already 
cited  fully  recognize,  if  they  do  not  in  terms  establish,  this 
principle."  ^ 

It  will  be  observed  that  the  cases  thus  far  cited,  on  the  sub- 
ject of  set-off,  are  all  from  one  state ;  but  there  have  been 
somewhat  similar  deliverances  in  others.  That  a  debtor  may 
have  a  judgment  due  him  exem])ted  in  his  favor  -  is  a  proposi- 
tion less  radical  that  the  one  above  propounded  and  judicially 
sustained.  That  a  laborer  may  pursue  his  claim  for  a  sura  due 
for  wages  to  the  point  of  execution,  notwithstanding  the  plea 
of  a  judgment  as  offset  b}^  a  defendant  who  had  bought  it  for 
the  purpose,  is  more  nearly  parallel.-'  A  laborer  sued  for 
wages  in  a  sum  within  the  exemption  limit.  The  defendant 
pleaded,  as  set-off,  a  judgment  which  had  been  duly  rendered 
against  the  laborer,  and  which  had  been  transferred  by  the 
judgment  creditor  to  him.  He  took  the  assignment  of  this 
judgment  after  he  had  become  indebted  to  the  laborer  but  be- 
fore the  latter  had  brought  suit.  The  statute  expressly  pro- 
vided *  that  "  the  defendant  may  plead,  by  way  of  set-off  or 
cross-action,  mutual  demands  held  by  the  defendant  against 
the  plaintiff  at  the  time  of  action  brought,  and  mutual  when 
offered  in  set-off."  The  court  said:  "This  provision  must  be 
construed  with  reference  to  the  act  of  1871,  whereby  $30  of 
the  wages  of  every  mechanic  and  laborer  is  exempt  from  '  ex- 
ecution, attachment  or  garnishment,'  Exemption  statutes 
are  entitled  to  a  liberal  construction.  The  manifest  purpose 
of  the  legislature  was  to  exempt  this  amount  of  wages  from 

'  To  the  cases  alluded  to  may  be  Ind.  175.   Compare  Con  very  v.  Lang- 
added,   as  bearing    on   this   subject  don,  66  Ind.  311. 
rather  pointedly  :  Dumbould  v.  Row-        -  Mace  v.  Heath  (Neb.),  51  N.  \V. 
ley,  113  Ind.  353 ;  Barnard  v.  Brown,  317. 

112  Ind.  53;  Taylor  v.  Duesterberg,        3  Collier  v.  Murphy,  90  Ten n.  300. 
109  Ind.  165;  Burdge  v.  Bolin,  106        *  Tennessee  Code,  §  3628  (M.  &  V.). 

Vide  Id.,  %  2931,  Act  of  1871. 


832  INCOKl'OKEAL    THINGS    AND    MONEY. 

any  kind  of  coercive  process  of  the  law.  If  such  a  demand 
cannot  be  reached  by  attachment  or  execution  or  garnishment, 
is  it  a  claim  subject  to  be  set  off  by  a  claim  or  demand  in  no 
way  springing  out  of  the  contract  under  which  the  wages 
were  earned?  We  think  the  exem])tion  laws  cannot  be  de- 
feated by  such  a  construction  of  the  statute  concerning  set- 
offs. .  .  .  While  the  language  used  in  the  act  of  1871, 
strictly  construed,  would  protect  such  wages  only  from  '  exe- 
cution, attachment,  or  garnishment,'  yet  the  whole  spirit  of 
the  act  is  such  that  we  think  this  claim  would  not  subject  to 
any  manner  of  legal  seizure.  '  Seizure '  is  a  word  often  useii 
in  our  exemption  laws,  and  this  word  has  been  used  by  the 
editors  of  the  last  revision  of  our  Code  as  fairly  construing  the 
force  and  meaning  of  this  exemption  of  wages.  While  we 
must  look  to  the  original  act  when  any  doubt  arises  as  to  the 
correctness  of  the  revisal,  yet  the  word,  as  used  by  the  revis- 
ors,  expresses  very  fully  what  we  take  to  be  included  within 
the  meaning  of  the  act  of  1871.  To  subject  this  claim  for 
wages  to  a  set-off  of  the  kind  here  offered  was  to  subject  ex- 
empted wages  to  a  species  of  legal  seizure  not  admissible.  Let 
judgment  be  rendered  for  the  amount  of  the  judgment  below, 
and  the  amount  of  the  judgment  improperly  allowed  to  be  set 
off,  and  costs  of  appeal."  ' 

In  the  volume  containing  the  report  of  this  case  there  is 
another  in  which  the  charges  for  medical  treatment  in  an  in- 
firmary were  unsuccessfully  set  off  against  a  claim  for  laborer's 
wages.  It  was  a  case  of  garnishment;  the  garnishee  was  a 
railroad  company  which  had  established  the  infirmary  for  the 
treatment  of  its  employes;  the  laborer  had  consented  to  be- 
come an  inmate  of  the  establishment;  the  garnishee  was  the 
pleader  of  the  set-off.  It  is  seen  that  there  are  some  features 
different  from  those  of  the  foreffoine:  case.^ 

Among  the  older  cases  there  is  one  in  which  the  offset  of 
one  judgment  against  another  was  denied  on  the  ground  that 
the  first  was  exempt ;  that  the  constitution  forbade  final  pro- 
cess against  exempt  property;  that  the  judgment  was  such 
property  (since  the  first  judgment  creditor  had  not  the  allowed 

'  Lurton,  J.,   for  the  court.      See        2  Railway  Co.  v.  Kennedy,  90  Teun. 
Waite  V.  Franciola,   90  Tenn.    191;     185. 
Duff  V.  Wells,  7  Heisk.  17. 


SET-OFF    AGAINST    EXEMPT    CllOSES    IN    ACTION.  833 

amount  of  chattels  without  it);  and  that  tlio  crediting  of  the 
second  judgment  against  the  lirst  would  virtually  be  "  final 
process,"  ^ 

It  will  be  observed  that  all  of  the  decisions  denying  that 
counter-claims  and  even  judgments  upon  them  may  be  credited 
against  the  exemptionist's  judgment  look  to  the  rule  of  liberal 
construction  for  support.  In  the  promissory  note  case,  the 
provision  that  exempt  property  "  shall  not  be  liable  to  sale  on 
execution  or  any  other  final  process  "  was  made  to  protect  the 
exemptionist  in  his  character  of  plaintiff,  when  the  defendant 
was  not  assailing,  but  virtually  defending  on  the  ground  that 
his  indebtedness  to  the  plaintiff  had  been  canceled.  In  the 
open-account  case  the  same  provision  was  held  to  serve  the 
exemptionist-plaintiff  as  though  the  pleading  of  a  judgment 
by  the  defentlant  had  been  a  demand  for  final  process. 

The  case  of  the  denial  of  a  judgment  as  offset  against  a 
laborer's  claim  for  wages  was  under  different  statutory  pro- 
visions. Mutual  demands  were  expressly  authorized  to  be 
pleaded  against  each  other,  but  execution  or  attachment  of 
exempt  wages,  to  a  limited  amount,  w^as  inhibited.  These 
enactments,  construed  together,  were  held  to  give  the  plaintiff' 
the  same  protection  against  his  adjudicated  indebtedness  to 
the  defendant  as  he  would  have  had  if  he  had  been  the  de- 
fendant and  his  wages  had  been  attached  by  garnishment.  In 
another  laborer's  case,  under  the  same  statute,  garnishment 
of  his  employer  for  the  wages  was  disallowed  —  the  laborer 
having  voluntarily  accepted  services  equivalent  to  payment. 
Suppose  he  had  sued  his  employer :  could  the  latter  have  set 
up  those  services  as  set-off,  under  the  construction  given  to 
the  statutes  in  the  other  case? 

To  the  exemptionist's  suit  the  defendant  always  has  the 
right  to  plead  payment.  He  not  only  has  the  right  to  plead 
payment  in  money,  but  also  the  giving  of  goods  or  services  in 
payment  if  the  plaintiff  has  taken  them  as  satisfaction  for  the 
demand.  If  there  is  nothing  due  to  the  exemptionist ;  if  the 
defendant  owes  him  nothing,  there  can  be  no  judgment  in 
favor  of  the  former.  If,  instead  of  a  plea  of  payment,  an  off- 
set is   pleaded,  it  ought  to  have   equal  consideration  if  the 

1  Curlee  v.  Thomas,  74  N.  C.  54;     Coj/ipare  Mallory  v.  Norton,  21  Barb. 
Wilson  V.   McEIroy,   33  Pa.  St.  83.     434;  Temple  v.  Scott  3  Minn.  419. 
53 


834  INCORPOREAL   THINGS    AND    MONEY. 

plaintiff  has  voluntarily  received  compensation.  If  a  laborer's 
wages  are  payable  in  money,  and  he  owes  a  debt  to  his  em- 
ployer payable  in  service,  the  debt  ought  not  to  be  allowed  as 
offset  against  the  demand  for  wages. 

§  (>.  Money  Deposited. 

It  is  not  meant  to  classify  money  with  incorporeal  things, 
but  it  is  treated  in  this  chapter  instead  of  the  last  because  of 
some  of  its  peculiar  characteristics.  It  is  an  index  of  value 
rather  than  the  thing  which  it  represents.  This  is  clear  where 
promises  on  paper  are  accounted  money.  Coin  is  certainly  a 
palpable  object.  The  Roman  law  writers  give  money  of  this 
kind  as  a  sample  of  res  corporales.  It  differs,  however,  from  most 
tangible  things  as  to  execution.  It  is  judicially  appropriated 
to  the  satisfaction  of  a  judgment  —  not  executed. 

It  has  already  been  shown  that  a  debtor  cannot  claim  money 
instead  of  goods ;  that  is,  he  cannot  let  his  goods  be  sold  and 
then  claim  their  value  from  the  proceeds  to  the  limit  of  the 
exemption.^  The  statutes  make  no  specific  exemjjtion  of 
money  to  the  debtor ;  but,  since  it  is  personalty,  may  it  not  be 
selected  by  him  under  general  provisions  when  it  is  in  bank 
o"r  in  the  keeping  of  a  friend,  and  is  therefore  liable  to  be 
reached  by  the  creditor? 

Though  a  specified  sum  of  cash  in  hand  be  not  exempted  by 
statute,  there  is  no  reason  why  money  should  not  be  saved  to 
the  debtor  under  provisions  which  allow  him  personalty  to  a 
given  amount  of  value  when  execution  is  pending  against  his 
property,  when  it  is  all  that  he  has  or  when  that  is  necessary 
to  make  up  the  amount,  owing  to  the  inadequacy  of  the  other 
chattels  which  he  possesses,  or  when  he  selects  it  in  preference 
to  other  things. 

What  cash  he  has  in  his  pocket  is  not  exposed  to  execution  ; 
but  what  he  has  on  deposit  in  bank,  or  m  the  keeping  of 
friends,  is  liable  to  be  reached  by  the  creditor  when  it  cannot 
be  claimed  as  exempt;  so,  money  thus  situated  comes  under 
the  provisions  above  mentioned.  The  debtor,  when  privileged 
to  select  the  personalty  he  prefers,  to  the  statutory  limit  of 
exemption,  may  choose  his  money. 

It  has  been  decided  repeatedly  that  money  deposited  in 

lAwfe,  p.  784 


FIKE    INSURANCE    MONEY.  835 

bank  and  money  due  but  not  collected  are  subject  to  selection 
as  exempt.^ 

§  7.  Fire  Insurance  Money. 

Is  the  exemption  of  personal  property  to  be  understood  as 
applicable  to  money  paid  for  insurance  after  the  property  has 
been  lost  by  fire?  Take  this  statute :  "  Tf  the  debtor  is  a  resi- 
dent of  this  state,  and  is  the  head  of  a  family,  he  may  hold 
exempt  from  execution  .  .  .  books,  instruments.  .  .  ."  - 
A  physician's  library  and  instruments  were  exempt  under  this 
act,  and  they  were  consumed  by  fire ;  he  was  a  resident,  and 
married:  was  the  insurance  money  exempt?  The  court  be- 
fore which  this  question  came,  answered  affirmatively.  It 
admitted  that  "  there  is  no  provision  as  to  the  exemption  or 
liability  of  the  proceeds  or  avails  of  such  property  when  dis- 
posed of  by  sale  or  otherwise."  There  is  none,  when  such 
property  is  burnt.  The  court  mentioned  no  ambiguity  in  the 
statute,  to  be  interpreted  either  liberally  or  strictly,  but  said 
that  the  statute  must  be  interpreted  liberally,  because  its  pur- 
pose is  to  secure  to  the  debtor  the  books,  instruments,  etc., 
necessary  to  the  making  of  his  livelihood ;  to  secure  food,  rai- 
ment and  shelter  to  dependent  families :  hence  the  court  con- 
cludes that  if  exempt  articles  be  insured,  and  then  lost,  "  the 
indemnity  secured  by  insurance  stands  in  the  place  of  the 
books."  The  court  argued :  "  It  is  plain  that  a  trespasser,  by 
appropriating  the  property  and  converting  it  to  his  own  use, 
cannot  make  it  subject  to  the  payment  of  the  owner's  debts 
by  holding  the  value  of  the  property  the  measure  of  the 
debtor's  damages  for  the  trespass,  subject  to  garnishment  by 
creditors.  If  he  could  do  this,  it  would  be  a  convenient 
method  to  defeat  the  exemption  of  the  statute.  .  .  .  The 
debtor  .  .  .  has  the  authority  to  change  the  articles  of 
exempt  property  by  sale  and  purchase,  exchange,  or  other- 
wise. He  cannot  be  presumed  to  have  abandoned  his  right  to 
this  authority  until  he  has  had  an  opportunity  to  exercise  it. 
The  creditor  cannot  complaim  of  its  exercise.     He  is  defeated 

•  Fanning  v.  First  N.  Bank,  76  111.  ton  v.  Lee,  50  Cal.  101 ;  Frost  v.  Nay- 

53 ;  Jones  v.  Tracy,  75  Pa.   St.  417 ;  lor,  68  N.  C.  325 ;  Probst  v.  Scott,  31 

Strouse  v.   Becker,  44  Pa,  St.  206 ;  Ark.  652. 

Carter  v.  Carter,  20  Fla.  558 ;  Hough-  2  la.  Code,  §  3073. 


83G  INCORPOKEAL  THINGS  AND  MONEY, 

of  no  right  thereby.  The  property  is  held  free  of  his  debt* 
and  he  is  not  prejudiced  by  the  change  to  the  other  like  prop- 
erty." ^ 

The  reasoning  of  the  court  will  probably  find  favor  beyond 
the  state  wliere  the  decision  is  law.  It  is  certainly  good  for 
the  legislature;  and  if  the  indemnity  money  for  exempt  chat- 
tels lost  by  fire  were  declared  legislatively  to  be  exempt 
everywhere,  creditors  would  not  be  injured,  since  exempt 
things  would  thus  become  exempt  cash  of  equal  or  less  value. 
It  is  likely  that  the  legislators  who  made  the  act  above  inter- 
preted would  have  exempted  such  monej^  had  this  additional 
legislation  been  proposed.  Courts  have  read  between  lines 
frequently  when  construing  homestead  statutes  — perhaps  al-' 
most  necessarily.  But  this  view  is  not  taken  always.  Money 
for  exempt  property  destroyed  has  been  held  not  exempt.^ 

§  8.  Life  Insurance  Money. 
By  a  statute  exempting  five  hundred  dollars  annually  paid 
by  a  husband  as  premium  on  his  policy  of  insurance  on  his 
own  life  for  the  benefit  of  his  wife,  it  was  decided  that  when 
the  annual  premium  exceeds  that  sum,  his  creditors  may  sue 
to  recover  the  surplus  while  both  husband  and  wife  are  liv- 
ing.^ But  it  had  been  previously  held  (and  the  case  was  now 
not  disapproved,  but  distinguished)  that  the  creditor's  claim 
must  antedate  the  payment  of  the  premium  when  he  seeks 
to  reach  the  excess.*  But  the  creditor  must  be  such  within 
the  meaning  of  the  statute;  so,  a  receiver,  appointed  to  repre- 
sent the  husband,  cannot  sue  and  recover  the  excess  of  pre- 
mium.* 

1  Reynolds  v.  Haines  (la.),  49  N.  W.  for  plaintiffs  cite  Wooster  v.  Page,  54 

851.     The  court,  through  Chief  Jus-  N.  H.  125.    It  is  not  in  harmony  with 

tice  Beck,    said:    "These    doctrines  our  conclusions." 

and  conclusions  find  support  in  the  2]V[onniea  v.  German  Ins.  Co.,  12 

following   decisions  of    this    court:  111,  App.  340. 

Kaiser  v.  Seaton,  62  la.  463 ;    ,    .    .  ^  stokes  v.  Amerman,  55  Hun,  178. 

Mudge  V.  Lanning,  68  la.  641.    .    ,    .  *  Baron  v.  Brummer,  100  N.  Y.  372. 

See,  also,  cases  cited  in  Kaiser  v.  Sea-  ^  Hasten  v.    Amerman,    51    Hun. 


ton,  supra,  and  the  following  :  Evans  244 
V.  Harvester  Works,  63  la.  204 ;  .  .  .  223 
Brainard  v,  Simmons,  67  la.  646 ;  .  .  .     308 


McEwen  v.  Brewster,  17  Hun, 
Farnsworth  v.  Wood,  91  N.  Y. 
Underwood  v.  Sutcliffe,  77  N.  Y. 


Leavitt  v.  Metcalf,  2  Vt.  342 ;  Mulli-  58 ;  Dubois  v.  Cassidy,  75  N.  Y.  298 ; 
ken  V,  Winter,  2  Duv.  256 ;  Tillotson  Williams  v.  Thorn,  70  N.  Y,  270 ; 
V.  Walcott,  48  N,  Y.  188,     Counsel    Browning  v.  Bettis,  8  Paige,  568. 


PENSION   MONEY    AND   ITS   INVESTMENT.  837 

When  the  law  limits  the  amounC  of  annual  premium  which 
one  may  pay  in  insuring  his  life  for  the  benefit  of  his  widow 
or  children,  creditors  may  levy  upon  the  insurance  money 
when  due,  in  the  proportion  which  the  excess  of  the  rate  al- 
lowed bears  to  the  whole  rate  paid.  The  balance  goes  exempt 
into  the  hands  of  the  widow  or  children.  It  nuitters  not 
whether  the  policy  be  home  or  foreign.' 

When  the  limitation  is  as  to  the  policy  (restricting  it  to  ten 
thousand  dollars,  for  instance),  which  one  may  take  out  in  be- 
half of  another  free  from  liability  for  his  own  obligations,^ 
the  object  is  exemption  in  favor  of  the  beneficiary  from  the 
debts  of  the  insured.  But,  suppose  the  beneficiary  pays  the 
premiums  —  he  is  not  protected  from  his  own  creditors  in  the 
enjoyment  of  the  insurance  money  when  due.^ 

§  9.  Pension  Money  and  Its  Investment. 

Pension  money  and  its  proceeds  have  been  exempted  by 
"  An  act  to  exempt  from  judicial  sale  the  pension  money  paid 
to  any  person  by  the  United  States  government,  and  certain 
proceeds  and  accumulation  thereof."  *  By  section  1,  "  All 
money  received  by  any  person,  resident  of  the  state,  as  a  pen- 

1  Cross  V.  Armstrong,  44  Olu'o  St.  paid  in  premiums  more  than  the 
613.    See  Cent.  L,  J.,  Nov.  11,  1893.  debt  sued  on.     Harvey  v.  Harrison, 

2  Miss.  Code,  1880,  §  1261.  89  Tenn.  470.     In  Alabama,  though  a 

3  Yale  V.  McLaurin,  66  Miss.  461.  husband  had  waived  liis  exemption 
"  Appellee  took  out  a  policy  of  in-  as  to  personal  property  in  a  promis- 
surance  upon  the  Uf  e  of  her  husband  scry  note,  the  proceeds  of  his  insur- 
for  the  sum  of  two  thousand  dol-  ance  policy  in  favor  of  his  wife  were 
lars,  upon  which  she  paid  tlie  pre-  held  to  be  liers  absolutely  at  his 
miums.  .  .  .  The  manifest  purpose  death.  Craft  v.  Stoutz  (Ala.),  10  So. 
and  end  of  the  statute  is  to  secure  to  647;  Ala.  Code,  §  2350,  limitino-  an- 
the  beneficiary  of  a  life  policy  the  uual  premiums  to  $500.  In  New 
proceeds  thereof,  freed  from  lia-  York  a  widow,  who  has  the  proceeds 
bility  for  the  debts  of  another  by  of  her  deceased  husband's  life  insur- 
whom  the  premiums  have  been  ance  in  her  possession  as  her  own, 
paid."  They  wei'e  not  exempt  as  cannot  hold  them  as  exempt  against 
against  her  own  debts.  lb.  Life  in-  her  own  ci-editors.  Millington  v.  Fox, 
surance  money  is  exempt  in  Minne-  13  N.  Y.  S.  334;  Crosby  v.  Stephan. 
sota,  as  stated  in  the  case  of  Brown  32  Hun,  478.  Contra,  Leonard  v. 
V.  Balfour,  46  Minn.  68.  In  Tennessee,  Clinton,  26  Hun,  288;  Austin  v.  Mc- 
$58,000  of  life  insurance  on  the  hus-  Laurin,  1  N.  Y.  S.  209.  See  Hise  v. 
band,  payable  to  the  wife,  was  held  Ins.  Co.  (Ky.).  13  S.  W.  369. 
exempt  though  he  was  insolvent  ^  Acts  of  20th  Gen.  Ass.  of  Iowa, 
vv^hen  he  insured  his  life  and  he  had  cb.  23. 


838  INCOEPOREAL  THINGS  AND  MONEY. 

sion  from  the  United  States  government,  whether  in  the  act- 
ual possession  of  such  pensioner  or  deposited,  loaned  or  in- 
vested by  him,  shall  be  exempt  from  execution  or  attachment 
or  seizure  by  or  under  any  legal  process  whatever,  whether 
such  pensioner  shall  be  the  head  of  a  family  or  not."  The  sec- 
ond section  exempts  the  homestead  of  such  pensioner  if  pur- 
chased with  such  money  or  its  accumulations.  This  statute 
has  been  construed  with  a  liberality  seemingly  carried  to  ex- 
tremity.' 

To  render  exempt  the  ])roj)erty  purchased  by  pension  money, 
it  must  "  inure  wholly  to  the  benefit  of  the  pensioner."  ^  And 
it  is  held  that  property  so  purchased  may  be  exchanged  for 
other  property,  and  that  the  latter  will  be  exempt  because  in- 
directly bought  with  the  pension  money.  The  properties  thus 
successively  protected  by  reason  of  the  kind  of  money  invested 
in  the  first  of  a  series  need  not  be  homesteads  or  specific  chat- 
tels favored  by  exemption  laws  but  any  species  of  property, 
real,  personal  or  mixed.  The  original  purchase  may  be  ex- 
changed for  more  valuable  property,  and  successive  exchanges 
by  good  bargains  may  greatly  enhance  the  means  of  the  pen- 
sioner, but  the  statute  cited,  as  construed,  renders  the  latest 
acquisition  exempt. 

A  pensioner  bought  a  horse  with  pension  money,  and  then 
sv^apped  him  for  a  better  one,  giving  nothing  to  boot:  the 
new  steed,  with  its  excess  of  value,  was  held  exempt.' 

1  Diamond  v.  Palmer,  79  la,  578.  is  desirable  to  have  the  oijinion  of  the 
Compare  the  dissenting  opinion  of  supreme  court,  viz. :  The  defendant 
Chief  Justice  Rothrock,  at  p.  581.  James  A.  Hill  is  a  pensioner  of  the 
See  Smythe  v.  Fiske,  2-8  Wall.  374.  United  States,  and  a  resident  of  the 

2  Crow  V.  Brown,  81  la.  344;  46  state  of  Iowa,  and  has  been  for  more 
N.  W.  993 ;  Dean  v.  Clark,  81  la.  753 ;  than  ten  years  last  past.  That  in  the 
46  N.  W.  995,  overruling  Foster  v.  month  of  January,  188S,  he  pur- 
Byrne,  76  la.  295 ;  35  N.  W.  513.  and  chased  a  horse  for  $65,  the  entire 
41  N.  W.  22,  and  Triplett  v.  Graham,  purchase  price  of  which  he  paid  out 
58  la.  135 ;  12  N.  W.  143.  of    moneys   received   as    such  pen- 

3  Smith  V.  Hill,  (la.),  49  N.  W.  1043.  sioner.  Thereafter  he  made  an  even 
Rothrock,  C.  J. :  "  The  amount  in  exchange  of  said  horse  for  another, 
controversy  does  not  exceed  $100,  which  it  is  agreed  is  now,  and  was  at 
and  the  appeal  comes  to  us  by  a  cer-  the  time  of  the  levy  of  the  attach- 
tificate  of  the  trial  judge,  which  is  ment  in  this  action,  worth  $125.  Is 
in  these  words :  '  It  is  hereby  cer-  the  defendant  entitled  to  the  horse 
titled  that  the  following  question  of  last  mentioned,  as  exempt  property, 
law  is  involved  in  the  decision  of  the  under  section  4305,  McClaiu's  Code, 
above  entitled  cause,  upon  which  it  being  sec.  1,  ch.  23,  Laws  20th  Gen. 


PENSION   MONEY    AND    ITS    INVESTMENT. 


539 


The  state  statute,  as  construed,  not  only  saves  original  pur- 
chases and  property  or  money  received  in  exchange  for  them, 
but  also  all  accretions  —  the  increase  of  stock  from  domestic 
animals  bought  with  pension  money  —  accumulations  of  any 
character  from  the  original  investment.  As  the  law  of  a 
state,  settled  by  the  courts  there,  it  may  be  unprofitable  to 
discuss  it;  but  as  an  interpretation  or  application  of  the  stat- 
ute of  the  United  States  on  the  subject,  it  will  not  be  im- 
proper to  consider  its  bearing  in  connection  with  that  law, 
with  a  view  to  its  influence  on  other  states. 


Assem.,  or  has  the  creditor  a  right,  in 
an  action  at  law,  to  have  the  prop- 
erty sold,  and  the  excess  over  the 
amount  originally  invested  by  the 
pensioner  subjected  to  the  payment 
of  his  debt?  '  The  section  of  the  Code 
referred  to  in  the  certificate  is  as  fol- 
lows :  '  All  money  received  by  any 
person  resident  of  the  state,  as  a  pen- 
sion from  the  United  States  govern- 
ment, whether  the  same  shall  be  in 
the  actual  possession  of  such  pen- 
sioner, or  deposited,  loaned,  or  in- 
vested by  him,  shall  be  exempt  from 
execution  or  attachment  or  seizure  by 
or  under  any  legal  process  whatever, 
whether  such  pensioner  shall  be  the 
head  of  a  family  or  not.'  If  the  de- 
fendant had  not  traded  horses,  but 
had  kept  the  one  first  purchased  for 
$65,  and  paid  for  with  pension  money, 
the  horse  would  have  been  exempt. 
No  additional  monej'  from  any  source 
is  invested  in  the  horse  in  controversy. 
The  whole  investment  in  this  horse 
was  pension  money.  It  is  true  it  was 
not  a  direct  investment.  But  con- 
struing exemption  laws  liberally,  as 
we  always  do,  we  think  there  should 
be  no  partition  of  this  horse  between 
the  pensioner  and  his  creditors.  The 
result  of  such  a  construction  of  the 
statute  would  be  to  compel  the  pen- 
sioner to  retain  the  identical  horses, 
cows  and  other  property  purchased 
with  his  pension  money,  or  to  prevent 


him  from  investing  it  in  any  property. 
The  horse  in  question  is  exempt  to 
the  extent  of  the  pension  money  in- 
vested in  him  ;  and  because  the  pen- 
sioner may  have  made  a  good  trade, 
and  procured  a  horse  worth  more 
tiian  that  amount,  appears  to  us  to  be 
no  reason  for  ordering  the  horse  to 
be  sold,  and  the  pensioner  paid  his 
pension  money  back,  and  the  balance 
paid  to  his  credit.  It  is  conceded  by 
the  certificate  that  the  money  in- 
vested in  the  horse  is  exempt,  but 
that  because  he  is  of  more  value  than 
the  pension  money  the  excess  of  such 
value  is  not  exempt.  It  seems  to  us 
this  rule  would  requii'e  pensioners  to 
be  careful  that  they  did  not  invest 
the  exempt  money  in  property  worth 
more  than  the  money  paid  for  it. 
There  is  nothing  in  this  opinion  in- 
consistent with  the  case  of  Diamond 
V.  Palmer,  79  Iowa,  578.  44  N.  W. 
Rep.  819.  In  that  case  it  was  held  by 
a  majority  of  the  court  that,  where 
a  pensioner  paid  for  the  services  of  a 
stallion  with  pension  money,  it  gave 
him  an  exempt  interest  in  the  colts, 
the  dams  of  the  colts  being  exempt 
because  purchased  with  pension 
money.  In  the  case  at  bar  rhe  horse 
in  question  represents  pension  money, 
and  nothing  else.  There  was  not  one 
cent  of  any  other  money  invested  in 
him.    Reversed." 


S40  INCOKPOKEAL  THINGS  AND  MONEY. 

§  10.  reiision  Money  in  Transit. 

The  federal  statute  itself  merely  provides  that  the  pension 
money  "  due  or  to  become  due  to  any  pensioner"  shall  be  ex- 
empt in  the  hands  of  any  oilicer  or  agent  and  "  shall  inure 
wholly  to  the  benefit "  of  the  pensioner.^  This  has  generally 
been  construed  and  understood  to  mean  that  the  pension 
money  shall  be  exempt  till  it  reaches  the  pensioner's  hands  — 
not  afterwards  —  nor  when  it  has  been  converted  into  land  or 
other  property.  The  property  purchased  with  pension  money 
has  not  been  generally  held  exempt  by  virtue  of  the  federal 
statute.^ 

The  reasons  may  be  drawn  from  the  face  of  the  statute. 
The  money  due  or  becoming  due  is  the  subject.  It  shall  not 
be  liable  to  attachment  levy  or  seizure  in  the  hands  of  any 
officer  or  agent,  i.  e.,  the  unpaid  sum  coming  to  the  pensioner 
shall  not  be  liable  —  not  the  paid  money  afterwards  or  prop- 
erty bought  with  it  afterwards.  It  shall  inure  to  the  benefit 
of  the  pensioner  only —  not  to  assignees,  pension  agents,  credit- 
ors or  anybody  else  —  to  him  only,  and  shall  be  paid  to  him 
only.  It  shall  not  be  seized,  attached  or  made  to  inure  to  an- 
other person's  benefit  while  in  course  of  transmission  to  the 
pensioner;  but,  when  transmitted  to  him  it  is  no  longer  in- 
violable so  far  as  the  statute  provides,  for  on  that  subject  it  is 
silent. 

This  facial  meaning  accords  with  the  same  statute  which  in- 
hibits  the  pensioner  from  selling  or  pledging  any  part  or  in- 
terest of  his  pension  before  he  gets  it.  And  it  accords  with 
other  federal  statutes,  containing  like  provisions  to  protect 

1  U.  S.  Rev.  Stat,  §  4747  :  "  No  sura  v.  Liuneus,  77  Me.  Gl ;  Payne  v.  Gib- 

of  money  due  or  to  become  due  to  son,  5  Lea,  173 ;  Cranz  v.  Wliite,  27 

any  pensioner  shall  be  liable  to  at-  Kan,    319 ;    Stockwell    v.   Bank,   36 

tachment,  levy  or  seizure,  by  or  un-  Hun,  583 ;  Spelman   v.  Aldrich,   136 

der  any  legal  or  equitable  process  Mass.  117;  Robion  v.  Walker,  82  Ky. 

w^hatever,  whether  the  same  remains  Gl ;  Faurot  v.  Carr,  108  Ind.  126 ;  Mc- 

with  the  pension  office  or  any  officer  Far  land  v.  Fish,  34  W.  Va.  548 ;  12  S.  E. 

or    agent    thereof,   but   shall    inure  548 ;  distmguishing  Hissem  v.  John- 

wholly  to  the  bene6t  of  such  pen-  son,  27  W.  Va.  G52,  and  the  able  dis- 

sioner."  senting  opinion  of  Judge  Robinson, 

2Rozelle  v.  Rhodes,  116  Pa.  St  134 ;  in  the  case  of  Crow  v.  Brown,  supra, 

Jai'dain  v.  Association,  44  N.  J.  L.  which  has  helped  the  writer  to  most 

376 ;  Kellogg  v.  Waite,  12  Allen,  529 ;  of  the  foregoing  cases. 
Friend  v.  Garcelon,  77  Me.  26 ;  Crane 


PENSION    MONEY    IX    TRANSIT. 


84:1 


the  bGn(3ficiary  from  losing  or  jeopardizing  the  benefit  in- 
tended for  him  by  the  granting  of  the  pension,  as  suggested 
virtually  in  the  dissenting  opinion  above  cited. 

The  investment  of  the  money  by  the  recipient  of  tlie  pension 
is  not  tlie  subject,  or  a  subject,  of  the  statute.  The  inviola- 
bility of  the  cash  itself,  after  the  pension  office  has  paid  it  to 
him,  is  not  a  subject  of  the  statute.  He  certainly  may  buy 
what  he  please  with  the  money.  He  may  buy  a  stock  of 
goods  —  a  house  and  lot  —  a  farm.  Suppose  the  money  in- 
vested in  a  home,  is  the  statutory  provision:  it  "shall  inure 
wholly  to  the  benefit  of  such  pensioner,"  applicable  to  the 
home?  May  the  home,  purchased  by  pension  money,  not  be- 
come a  basis  of  credit  like  other  realty  of  his?  How  can  we 
find  in  the  statute  that  the  home  purchased  shall  not  inure  to 
the  benefit  of  a  creditor? 

Congress  does  not  seem  to  have  designed  to  pass  an  exemp- 
tion law,  but  merely  to  have  meant  to  protect  the  pension 
money  till  it  should  reach  the  hands  of  the  beneficiary  —  or, 
rather,  to  pass  an  exemption  law  relative  to  the  pension  in 
transit.^ 


1  Robinson,  J.,  in  bis  dissent  in  the 
(Jrow  case,  supra,  points  out  some 
cases  wholly  or  partially  favoring 
the  majority  opinion  :  "  The  doctrine 
of  the  majority  opinion  was  approved 
in  Falschow  v.  Werner,  51  Wis.  87 ; 
7  N,  W.  911,  and  so  far  as  I  am  aware 
i!:  has  been  approved  by  no  other 
court  of  last  resort,  although  some- 
thing in  the  nature  of  a  dictum  was 
said  in  approval  in  Hay  ward  V.  Clark, 
50  Vt.  617.  It  is  interesting  to  note, 
.n  this  connection,  that  the  only  case 
cited  by  the  supreme  court  of  Wis- 
consin to  support  its  views  is  Eckert 
V.  McKee,  9  Bush,  '655.  That  case,  so 
far  as  it  supports  the  doctrine  of  the 
Wisconsin  court,  was  overruled  by 
the  court  which  decided  it  in  Robion 
v.  Walker,  supra.  It  has  been  held 
that,  before  the  pension  check  is 
cashed,  it  so  far  represents  money  in 
the  course  of  transmission  that  it 
may  be  disposed  of  by  the  pensioner 


and  the  pension  money  thus  placed 
beyond  the  reach  of  creditors  of  the 
pensioner.  Farmer  v.  Turner,  64  la. 
690;  21  N.  W.  140;  Hissem  v.  John- 
son, supra;  Hayward  v.  Clark,  su- 
pra."  The  question  whether  congress 
has  power  to  exempt  pension  money 
after  its  passage  to  the  pensioners 
hands  is  then  noticed  by  the  dissent- 
ing judge,  as  follows :  "  The  appellee 
contends  that  congress  has  no  power 
to  exempt  from  execution  pension 
money  after  its  payment  to  the  pen- 
sioner. That  power  was  questioned 
in  Webb  v.  Holt,  57  la.  716;  .  .  . 
in  Hissem  v.  Johnson,  suj^ra,  and  in 
Cranz  v.  White,  supra.  It  was  re- 
ferred to  but  not  determined  in 
United  States  v.  Hall,  98  U.  S.  343 ;  — 
that  cas-e  going  no  further  than  to 
hold  that  congress  may  enact  laws 
to  protect  pension  money  until  it 
shall  have  passed  into  the  hands  of  the 
pensioner.     The  power  to  enact  laws, 


842 


INCORPOKEAL    THINGS    AND   MONEY. 


§  11.  The  United  States  Pension  Act:  Wlictlicr  it  Ex- 
empts Accunuilations  from  the  Money. 

The  argument  for  tlie  construction  of  the  statute  so  as  to 
render  the  pension  money,  with  its  purchases,  invuhierable 
after  the  date  of  its  lodgment  in  the  pocket  of  the  pensioner, 
is  that  the  chiuses  forbidding  seizure  before  such  hxlginent, 
and  declaring  that  the  pension  money  shall  inure  wholly  for 
his  benefit,  are  incompatible  with  "  the  idea  that  it  can  be 
seized  after  it  comes  into  his  possession."  The  inhibition,  of 
seizure  before,  was  already  the  law,  and  its  reiteration  in  this 
statute  would  have  been  supererogatory,  it  is  argued.  And 
it  is  further  contended  that  the  act  of  congress  is  an  exemp- 
tion statute,  with  sole  purpose  to  keep  off  creditors  from 
pension  money.  And  finall}',  that,  being  an  exemption  act, 
it  should  protect  property  purchased  with  it  so  as  to  secure 
to  the  "  pensioner  "  the  whole  "  benefit,"  which  would  not  be 
the  case  if  the  property  becomes  liable  for  his  debts.     Then 


which  shall  have  the  effect  necessa- 
rily given  to  the  section  under  con- 
sideration by  the  opinion  of  the  ma- 
jority, is  not  expressed  in  the  consti- 
tution ;  and,  if  possessed  by  congress, 
it  is  an  implied  or  incidental  power. 
In  the  view  I  take  of  the  statute  it  is 
not  necessary  to  determine  whether 
that  power  exists ;  but  the  fact  that, 
if  exei'cised,  it  would  create  in  many, 
if  not  all,  the  states  a  new  class  of 
exemptions,  and  would  be  contrary 
to  the  general  policy  of  congress  not 
to  interfere  unnecessarily  with  the 
domestic  affairs  of  the  several  states, 
is  an  additional  reason  in  favor  of 
the  conclusion  that  congress  did  not 
intend  to  exempt  property  in  the 
hands  of  the  pensioner,  purchased 
with  the  pension  money,  from  liabil- 
ity for  his  debts,  but  did  intend  to 
leave  the  matter  of  creating  such 
exemption  to  the  discretion  of  the 
state  legislature.  Happily  the  gen- 
eral assembly  of  Iowa  .  .  .  has 
extended  the  protection  provided  by 


congress  to  investments  made  by  the 
pensioner,  and  the  question  involved 
in  this  case  will  be  of  interest  in  com- 
paratively few  cases.  [True  in  Iowa 
but  not  out  of  it.]  Eelieving  as  I  do, 
however,  that  the  construction  of  the 
federal  statute  adopted  Ly  the  major- 
ity is  not  sanctioned  by  the  rules  of 
construction,  and  that  it  does  not 
effectuate  the  intent  of  congress,  I 
can  but  dissent  from  their  opinion. 
Certainly  the  prior  decisions  of  this 
court  should  not  be  overruled,  and 
the  great  weight  of  authority  disre- 
garded, unless  for  reasons  so  con- 
vincing as  to  leave  little  room  to 
doubt  the  correctness  of  such  a 
course.  .  .  ."  See  Judge  Robin- 
son's dissent  in  full  —  especially  his 
review  of  the  decisions  of  several 
states.  The  question,  in  other  states, 
will  be  aided  hy  this  case,  considered 
not  as  authority,  but  as  containing 
reasons.  So  a  dissenting  opinion  may 
be  as  important  to  them  as  that  of 
the  majority. 


THE  unitp:d  states  pension  act.  843 

it  is  said  that  such  exemption  act  sliould  be  liberally  con- 
strued in  favor  of  the  debtor.' 

The  Avriter  Avill  present  some  thought  upon  those  argu- 
ments, though  with  diffidence  and  with  high  res[)ect  for  the 
jurists  who  have  advanced  them.  It  is  true  that  pension 
money  is  not  attachable  or  otherwise  seizable  by  creditors 
while  it  is  held  by  the  government  through  any  of  its  olficers, 
and  there  was  no  necessity  for  a  repetition  of  what  was  law 
before  this  statute  was  passed;  but  to  infer  that  therefore  a 
repetition  means  that  the  money  shall  not  be  attachable  or 
seizable  when  it  no  longer  "  remains  with  the  pension  officer, 
or  any  officer  or  agent  thereof,"  seems  unwarrantable. 

Where  is  the  incongruity  in  the  money  being  attachable, 
and  its  inuring  wholly  to  the  pensioner's  bcnelit?  The  pen- 
sioner wholly  has  the  benelit  of  the  pension  if  he  gets  a  debt 
paid  with  it.  He  has  it  as  clearly  as  though  he  had  bought  a 
farm  with  it.  An  honest  pensioner  will  prefer  to  pay  a  debt 
and  have  no  farm,  rather  than  have  a  farm  and  not  pay  the 
debt.  He  is  benefited  by  becoming  rid  of  debt,  whether  he 
pays  out  the  pension  money  voluntarily  or  has  it  paid  out  for 
him  under  a  judgment. 

The  act  of  congress  is  not  primarily  an  exemption  act,  and 
hardly  has  an  exemption  feature,  since  its  protection  of  the 
pension  from  seizure  while  yet  in  government  hands  is  said  to 
be  supererogatory,  and  it  has  nothing  to  say  about  it  after  its 
reaching  the  pensioner's  hands  —  the  money  not  presumably 
being  kept  apart  from  other  funds  but  such  disposition  made 
of  it  as  he  thinks  fit.  Supererogatory  legislation  does  not  jus- 
tify the  judicial  substitution  of  something  not  mentioned  in 
the  statute.  It  may  awaken  inquiry,  and  courts  may  look  to 
see  what  shadow  it  casts  —  whether  there  is  anything  implied ; 
but  statutes  are  not  to  be  extended  because  meaningless  so  far 
as  they  go. 

Evidently  this  is  no  more  an  exemption  statute  than  a  law 
forbidding  the  attachment  of  a  debt  before  it  is  due,  or  pro- 
hibiting the  seizure   of  goods  in  transit,  or  the  levy  upon 

^  Crow  V.  Brown,  supra,  in  which  Holt,  supra,  are  referred  to  for  the 

the  dissenting  opinion  of  Beck,  J.,  reasons  of   tiie  decision  overruling 

in  Foster   v.   Hannum,   supra,   and  those  cases, 
that  of    Rothrock,   J.,   in  Webb  v. 


844  INCORPOREAL    THINGS    AND    MONEY. 

assets  while  in  course  of  probate  administration,  would  be. 
And,  not  being  such,  the  ever-repeated  plea  for  the  libcM'al  con- 
struction of  exenij)tion  statutes  is  not  applicable  to  this  statute. 
It  oug-ht  to  be  liberally  construed,  because  it  is  a  pension  act 
designed  to  benefit  soldiers ;  not  because  of  its  being  an  ex- 
emption act  (except  that  it  is  true  that  non-liability  to 
''attachment,  levy,  or  seizure,  by  or  under  any  legal  or  equi- 
table process  whatever,  whether  the  same  remains  with  the 
pension  office,  or  any  officer  or  agent  thereof,"  is  such),  for 
that  feature  had  been  anticipated  by  prior  act  and  decision, 
and  is  supererogatory,  as  it  is  said.^ 

If  this  federal  statute  means  that  pension  money  paid  to  the 
pensioner,  and  its  proceeds  and  accumulations  and  property 
purchased  with  it,  are  exempt,  is  not  the  above  mentioned 
state  statute  so  providing  a  work  of  supererogation?  Such 
money,  held  or  invested  by  him,  is  protected  by  the  act  of 
congress  from  execution  or  attachment  or  seizure  by  or  under 
any  legal  process  whatever  (as  the  state  law  has  it),  if  the  fed- 
eral lavk^  is  such  an  exemption  act  as  claimed.  This  is  no 
argument  against  the  court's  view,  since  it  is  quite  competent 
for  a  state  legislature  to  repeat  congress  on  such  a  subject,  but 
it  seems  improbable  that  it  would  mean  to  do  a  useless  thing. 

The  state  statute  above  discussed  has  been  further  construed 
as  forbidding  the  application  of  the  pension  money  of  an  in. 
sane  pensioner  to  reimburse  the  county  for  her  su])port  in  the 
county -house  after  that  statute  took  effect.  Whether  it  could 
be  applied  for  her  support  there  before  that  time  was  a  ques- 
tion upon  which  the  judges  were  not  all  in  accord,  but  it  was 
answered  in  the  negative  to  comport  with  a  former  ruling,- 

1 U.  S.  Rev.  Stat.,  g  4705 ;  Buchanan  and  has  been  at  all  times  since  May, 

V,  Alexander,  4  How,  20,  1861,   insane.     For   many  years  she 

2  Fayette  County  v,  Hancock  (la.),  had  pending  an  application  for  a 
49  N.  W.  1040.  Robinson,  J. :  "  In  pension  on  account  of  her  husband. 
May,  1861,  Jane  Nicoll  was  duly  ad-  who  had  been  a  soldier  of  the  United 
judged  to  be  insane  by  the  proj^er  States  during  the  war  of  the  Rebel- 
authorities  of  Fayette  county,  and  lion.  The  applicatiim  not  having 
was  committed  to  the  Iowa  hospital  been  allowed  after  the  lapse  of  sev- 
for  the  insane,  where  she  was  con-  eral  years,  the  plaiutifT,  with  the  in- 
fined  until  the  21st  day  of  April,  tent  to  be  reimbursed  for  its  expenses 
1873.  At  that  time  she  was  removed  in  supporting  Mrs.  Nicoll,  employed 
to  the  poor-farm  of  plaintiff,  where  an  attorney  to  prosecute  the  claim, 
she  has  since  remained.     She  is  now,  and  paid  $10  for  that  purpose.     In 


THE    UNITED    STATES    PENSION    ACT. 


845 


In  the  case  so  construing,  the  pension  money  had  already 
reached  the  hands  of  tlic  pensioner,  being  in  those  of  the 
guardian  of  the  insane  woman,  whicli  was  the  only  payment 
to  her  which  was  legally  possible.  .The  federal  statute,  there- 
fore, did  not  touch  the  case.  The  state  statute,  which  extends 
the  federal  provision  (that  tlie  money  "shall  inure  wholly  to 
the  benefit  of  the  pensioner  "  while  in  the  treasury  or  in  tran- 
sit) so  as  to  render  it  exempt  after  it  reaches  the  pensioner's 
hands,  was  now  farther  extended  by  construction  to  protect 
the  pensioner  from  payment  for  her  own  board  and  nurse- 


November,  1882,  on  the  application 
of  plaintiff,  H.  P.  Hancock  was  ap- 
pointed guardian  of  the  estate  of 
Mrs.  Nicoll,  and,  having  qualified  as 
such,  entered  npon  the  discharge  of 
his  duties.  In  December,  1888,  the 
claim  of  Mrs.  Nicoll  was  allowed,  and 
a  sum  of  money,  stated  in  argument 
to  be  about  $2,400,  was  paid  to  de- 
fendant for  her.  The  money  so  paid 
comprises  all  the  property  of  Mrs. 
Nicoll  which  defendant  has  received. 
In  March,  1889,  plaintiff  filed  against 
defendant  for  allowance  a  claim  for 
$3,003.14,  for  expenses  incurred  in 
adjudging  Mrs.  Nicoll  insane,  in  pay- 
ing her  expenses  at  the  Jiospital  for 
the  insane,  in  supporting  lier  at  its 
poor-farm,  and  for  money  paid  in 
prosecuting  her  claim  for  a  pension. 
Defendant  filed  objections  to  the 
claim  on  several  grounds,  one  of 
which  was  that  the  money  in  his 
hands  was  not  liable  for  the  payment 
of  the  claim,  because  it  was  money 
received  from  the  United  States  as  a 
pension.  In  April.  1890,  the  board 
of  supervisors  of  plaintiff  remitted 
all  of  its  claim  in  excess  of  $1,800. 
In  June,  1889,  the  court,  by  consent 
of  parties,  ordered  the  defendant  to 
pay  to  plaintiff  for  the  support  of 
Mrs.  Nicoll  the  sum  of  $2  per  week, 
and  of  that  order  no  complaint  is 
made.  On  the  final  hearing  the  court 
allowed  plaintiff  the  sum  of  $1,730.83, 


and  from  that  order  the  defendant 
appeals.  The  order  did  not,  in  terms, 
require  the  payment  of  the  amount 
specified  from  pension  money,  but 
the  pleadings  and  stipulations  in  the 
case  show  clearly  that  defendant  had 
no  other  funds,  and  that  the  contro- 
versy was  over  the  appropriation  of 
the  pension  money  for  the  payment 
of  the  claim  of  plaintiff.  It  is  evi- 
dent that  the  order  was  designed  to 
be  an  appropriation  of  the  pension 
money  to  the  amount  specified,  and 
must  be  treated  by  us  as  having  that 
effect.  The  money  in  question  is  in 
the  possession  of  the  guardian  of  the 
estate  of  the  pensioner,  and  therefore 
is  constructively  in  her  possession, 
and  not  in  the  course  of  transmission 
to  her.  The  estate  of  an  insane  per- 
son, subject  to  execution,  is  liable  for 
the  expenses  incurred  by  the  county 
in  his  support.  Code,  ^5  1433.  The 
right  to  be  reimbursed  for  such  ex- 
penses, if  not  waived  by  the  board  of 
supervisors,  is  similar  to  the  right  to 
recover  from  the  estate  money  for 
any  other  legal  purpose,  and  is  gov- 
erned by  the  same  rules.  We  are 
required  to  determine  in  this  case 
whether  the  pension  money  of  an 
insane  person,  received  from  the 
United  States  after  chapter  23,  Acts 
20th  Gen.  Assem.  Iowa,  exempting 
pension  money,  took  effect,  is  liable 
for  expenses  incurred  and  paid  by  the 


846  INCORPOREAL  THINGS  AND  MONEY. 

care  in  an  almshouse.  Would  the  pension  money  not  inure 
to  the  insane  woman's  benefit  by  paying  for  such  necessary 
support?  True,  her  obligation  was  a  debt;  and  if  the  statute 
means  what  it  is  now  construed  to  mean,  the  county  had 
notice,  upon  the  promulgation  of  the  act,  that  the  pension 
was  exempt  from  such  a  debt.  May  the  pension  money, 
in  possession  of  the  guardian  of  the  insane  woman,  be  applied 
now  to  defray  her  passing  expenses  from  month  to  month? 
If  not,  in  what  way  can  it  be  used  so  as  to  "  inure "  to  her 
"benefit?"* 

county  in  winch  such  person  has  his  after  the  act  named  took  effect,  for 
legal  residence  for  his  support.  We  expenses  incurred  and  paid  by  it  in 
are  agreed  that  the  pension  money  support  of  the  insane  pensioner  be- 
is  not  liable  for  such  expenses  in-  foi'e  that  time,  we  are  not  agreed, 
curred  after  the  act  named  took  ef-  As  to  that,  the  rule  announced  by  the 
feet,  and  before  an  order  appropri-  majority  of  this  court  in  Crow  v. 
ating  money  for  future  support  is  Brown  (Iowa),  46  N.  W.  Rep.  993, 
made.  Whether  it  can  be  appropri-  governs.  The  writer  adheres  to  the 
ated  by  an  order  providing  for  ex-  views  expressed  in  the  minority  opin- 
penses  to  be  thereafter  incurred  is  a  ion  in  that  case,  but  the  other  mem- 
question  not  involved  in  this  case,  bers  of  the  court  are  satisfied  with 
and  not  determined.  In  regard  to  the  views  expressed  in  the  majority 
the  right  of  the  county  to  have  ap-  opinion,  and  the  order  of  the  district 
propriated  pension   money  received  court  is  therefore  reversed." 

*  Additional  sections  to  this  chapter,  on  the  money  and  necessaries  usually 
allowed  for  the  temporary  support  of  widows  and  orphans  of  decedents 
while  estates  are  being  settled,  would  not  be  strictly  congi-uous  with  the 
general  subject  in  hand.  Although  such  allowances  are  free  from  the 
claims  of  creditors,  they  are  not  embraced  in  the  exemption  statutes,  and 
they  properly  belong  to  another  branch  of  the  law.  The  topic  is  compre- 
hensively treated  in  Schouler's  work  on  Executors  and  Administrators 
§§  447-457,  and  the  authorities  cited  are  brought  up  to  a  comparatively  re- 
cent date. 


CHAPTER  XXVII. 


EXEMPTION  ENFORCED. 


1.  Debtor's  Schodule. 

2.  SchocUile  and  Aiipraisement. 

3.  Appraisement   of    the   Widow's 

Allowance. 

4.  Remedies  for  Wrongful  Levy. 

5.  Damages  Dependent  on  Legality 

of  Claim  for  Exemption. 


§  6.  Replevin. 

7.  Burden  of  Proof. 

8.  Laches  and  Passive  Waiver. 

9.  Waiver  in  Promissory  Notes. 

10.  Notice  —  Rank  of  Creditors. 

11.  Mortgage,  Relative  to  Waiver. 


§  1.  Debtor's  Schedule. 

Wo  prescrihed  form:  The  selection  of  exempt  articles  and 
the  notification  of  the  officer  are  usually  attended  with  no 
formal  procedure.  When  the  exemption  is  absolute,  the 
officer  is  bound  to  recognize  the  debtor's  right ;  when  it  is 
such  that  the  officer  should  have  notice  of  the  claim,  an  oral 
demand  is  usually  sufficient,  since  the  statutes  have  no  form 
for  it,  as  a  general'  thing.  Form  ought  to  be  followed  when 
any  is  prescribed.  A  schedule  must  be  filed  when  that  is  re- 
quired. The  claim  may  be  made  by  letter  addressed  to  the 
sheriff.  All  that  is  necessary  is  that  the  officer  in  charge  of 
the  execution  be  brought  to  a  knowledge  of  the  debtor's  claim 
for  exemption  to  the  amount  accorded  by  statute.'  Thus,  a 
debtor  was  held  to  have  made  a  sufficient  selection  and  notifi- 
cation when,  of  three  horses  attached,  he  claimed  to  own  but 
one  and  refused  to  select  from  the  three,  though  it  afterwards 
appeared  that  he  owned  all.  His  action  was  honest  and  dis- 
ingenuous, and  his  notice  to  the  sheriff  on  the  day  of  sale  was 
held  to  be  in  time  and  sufficiently  formal.^ 

To  claim  what  the  law  allows,  when  the  claimant  does  not 
possess  it,  is  futile.     One  who  claimed  a  lijorse  in  his  schedule, 

1  Keller  v.  Bricker,  64  Pa.  St  379 ;  v.   Bond,   7    Bax.   288 ;    Simpson   v. 

Diehl  V.  Holben,39  Pa.  St.  213;  Bow-  Simpson,  30  Ala.  225;  Mark  v.  The 

man  v.  Smiley,  31  Pa.  St.  225  ;  Finuin  State,  15  Ind,  98;  Bryan  v.  Kell}',  85 

V.  Malloy.  33  N.   Y.  Sup'r,  382,  390 ;  Ala.  509. 

People  V.    Palmer,  46  111.  402 ;  Mc-        2  Plimpton  v.  Sprague,  47  Vt  467  ; 

Cluskey  v.  McNeely,  8  111.  578 ;  Clark  Haskins  v.  Bennett,  41  Vt.  698. 


848  EXEMPTION    ENFOECED. 

and  bongM  one  afterwards  to  be  covered  by  the  claim,  did 
not  come  within  the  law.'  And  a  claim  or  exemption  beyond 
articles  enumerated  in  a  statute,  or  the  constitution  of  the 
state  (as  the  case  may  be),  is  void.-  For,  though  construction 
is  not  strict,' yet  the  rule,  "that  what  is  not  enumerated  is 
excluded,  is  always  observed. 

When  necessary:  Whether  a  debtor  must  file  an  inventory 
of  his  property,  when  claiming  chattel  exemption,  has  been 
held,  under  statute,  to  depend  upon  the  time  of  claiming  — 
whether  before  or  after  the  levy.  If  before,  no  inventory  is 
required,  unless  there  is  demand  in  writing  for  it,  by  the 
creditor,^  made  before  the  term  in  which  the  process  is  re- 
turnable. If  the  debtor  claim  after  levy,  there  must  be  an  in- 
ventory accompanying  the  claim.  When  attached  movables, 
credits  or  chcses  in  action  are  claimed  as  exempt,  and  they  are 
held  by  a  garnishee,  the  claim  must  have  an  inventory  of  the 
claimant's  property  filed  with  it.  The  lack  of  inventory,  when 
one  is  legally  required,  will  warrant  the  creditor  in  asking 
judgment.  If  the  list  is  jBled  but  is  not  complete,  the  plaint- 
iff may  require  completion  or  may  accept  the  list  as  it  is,  at 
his  option.'^ 

Is^o  inventory  was  thought  necessary  when  money  had  been 
attached  by  garnishment  and  was  claimed  by  the  defendant 
as  exempt ; "  but  when  property  seized  under  a  distress  war- 
rant was  claimed  as  exempt,  an  inventory  or  schedule  was  re- 
quired.^ The  difference  was  not  between  money  and  goods, 
but  between  the  statutes  under  which  the  seizures  were  made, 
as  construed.^ 

A  schedule  is  held  necessary  when  required  by  statute, 
though  all  a  debtor's  property  be  exempt,  and  he  offer  to  sur- 
render it,  on  a  petition  for  his  personal  release  from  custody." 

A  debtor,  having  furnished  his  schedule  to  an  officer  in 
charge  of  an  execution  against  his  property,  and  claimed  all 

1  Smith  V.  Eckels,  65  Ga.  326.  9    So.  454.      Compare   Tonsmere  v. 

2  Duncan  v.  Barnett,  11  S.  C.  333.        Buckland,  88  Ala.  313,  and  Ex  parte 

3  Washburn  v.   Goodheart,   88  111.     Redd,  73  Ala.  548. 

229.  '  Ehle  v.  Deitz,  32  111.  App.  547. 

4  Menzie  v.  Kelly,  8  111.  App.  259.  »  Ala.  Code,  §  2533. 

5  Tonsmere  v.  Buckland,  88  Ala.  9  Strieker  v.  Kubusky,  35  111.  App. 
312 ;  Ala.  Code  (1886),  S^g  2531,  2525.  159 ;  Act  concerning  Insolvent  Debt- 

e  Decatur  Co.  v.  Deford,  93  Ala.  347 ;     ors  (1873),  §g  8,  9. 


debtor's  scueddle.  849 

the  chattels  mentioned  in  it  as  exempt,  further  claimed  that 
his  realty  (which  the  othcer  had  levied  upon)  should  contrib- 
ute to  his  exemption  so  much  as  to  make  up  what  the  person- 
alty lacked  of  six  hujulrcd  dollars  —  the  statutory  maximum. 
The  sheriff  sold  the  land  and  refused  to  give  any  of  its  pro- 
ceeds to  make  up  the  exempted  sum:  whereupon,  the  debtor 
sued  him,  and  made  allegations  equivalent  to  the  above  state- 
ment, which  the  court  deemed  sullicient  as  to  the  debtor's 
duty  relative  to  claim  and  schedule.' 

In  litigation,  when  the  debtor  alleges  that  he  filed  his  sched- 
ule with  the  sheriff,  he  ought  further  to  make  such  averment 
as  will  show  that  it  Avas  made  and  filed  as  required  by  statute.' 

Omissions:  If  the  ofllcer  in  charge  of  an  execution  mislead 
the  debtor  as  to  matters  of  fact,  and  cause  him  to  fail  to  file 
his  schedule,  he  does  not  cut  the  debtor  off  from  all  subse- 
quent right  to  claim.  Though  the  law  may  have  fixed  a  time 
within  which  the  schedule  should  be  filed,  it  seems  that  he  is 
not  held  to  the  time  when  misled  by  the  officer.^  Of  course, 
the  debtor  cannot  plead  ignorance  of  the  law  and  thus  excuse 
his  laches;  but  he  is  not  presumed  to  know  facts;  and  he  nat- 
urally would  look  to  the  officer  in  charge  as  to  a  disinterested 
person  whose  words  are  reliable.  Indeed,  does  prescribed 
time  begin  to  run  before  official  information  is  received,  where 
the  statute  makes  it  the  duty  of  the  officer  to  give  it?  The 
statutes  do  not,  everAnvhere ;  not  in  the  state  of  the  above 
cited  case,  it  seems;  yet  the  debtor's  excuse  was  respected, 
Avhen  sued  upon  his  bond  given  to  replevin  goods,  in  the  hands 
of  an  officer,  which  he  claimed  as  exempt.  The  court  held 
that  it  was  the  duty  of  the  officer  to  give  the  debtor  informa- 

1  Chatten  v.  Snider,  126  Ind.  387.  in  such  case,  it  was  held  liable  for  a 
See  Robinson  v.  Hughes,  117  Ind.  privileged  debt  Fleming  v.  Hender- 
293;  Ind.  Const.,  art.  1,  §  22;  R.  S.  son,  133  Ind.  234.  If  the  realty  and 
0881),  §§  67,  703.  Compare  Vogel-  personalty  of  the  judgment  debtor  is 
Bong  V.  Beltzhoover,  59  Pa.  St.  57.  worth  no  more  than  the  amount  ex- 
Realty  and  personalty  both  go  to  empted,  the  sheriff  is  not  bound  to 
make  up  the  exempt  sum,  in  Indiana,  make  levy.  State  v.  Harper,  120  Ind. 
where  there  are  no  Homestead  Laics,  23. 

technically  speaking.     Realty,  wortii  2  Over  v.  Shannon,  75  Ind.  352. 

less  than  the  exemption  authorized  ^Morrissey  v.  Feeley,  36  IlL  App. 

by  law,  may  be  set  off  to  the  widow,  556. 
much  as  under  a  homestead  law.  But, 
54 


850  EXEMPTION    ENFORCED. 

tion  of  the  writ  of  execution  when  serving  it.  If  done,  the 
debtor  could  have  claimed  in  due  time. 

In  making  his  schedule,  the  debtor  ought  to  sign  it  regu- 
larly; but  his  signature  in  the  body  of  the  affidavit  has  been 
allowed^ — even  its  entire  omission  was  not  fatal  after  the 
officer  had  received  it  without  objection,  taken  the  debtor's 
affidavit  upon  it,  and  carried  it  off  without  calling  the  debt- 
or's attention  to  the  lack  of  signature.'^ 

The  delay  or  neglect  of  the  officer  to  cause  appraisement  to 
be  made  at  the  proper  time  is  no  fault  of  the  debtor;  so,  if 
sale  take  place  without  it,  the  debtor  may  claim  his  exemp- 
tion from  the  proceeds  of  the  sale  instead  of  suing  the  officer 
for  damages,  in  some  jurisdictions.''  In  others,  he  may  take 
the  latter  course,  or  he  may  recover  the  exempt  property 
even  from  an  innocent  purchaser.* 

Where  the  probate  judge  orders  the  payment  and  invest- 
ment of  money  due  to  debtor,  the  latter  may  make  his  sched- 
ule after  such  order,  and  then  the  judge  may  grant  the 
exemption.^ 

Objection  waived:  The  schedule  must  contain  all  that  the 
statute  requires;  for  instance,  a  list  of  all  the  debtor's  prop- 
erty, the  claim  of  exemption  in  whole  or  in  part,  the  residu- 
ary of  the  claimant  within  the  state,  and  his  famil}^  headship 
(though  many  statutes  do  not  require  all  this);  and  a  failure 
to  make  the  schedule  conform  to  the  statute  has  been  found 
fatal.^  But  if  the  creditor,  without  objecting  to  the  omission 
of  property  from  the  schedule,  contests  the  right  of  exemp- 
tion, it  has  been  held  that  he  thus  waives  objection.'^  It  has 
been  questioned  whether  a  debtor  may  amend.^ 

The  omission  of  some  articles  will  not  vitiate  the  schedule;' 

» Schumann  v.  Pilcher,  36  111.  App.  Jordan,   69  Tex.  300.     See    State   v. 

<3.  Kurtzeborn,  2  Mo.  App.  335. 

2  Cooper  V.  Payne,  36  111.  App.  155;  ^This  in  Georgia,  where  the  ordi- 

Langston  v.  Murphy.  31  111.  App.  188.  nary  makes  such  orders.     Douglass 

» Coleman's  Appeal.  103  Pa.  St.  366.  v.  Boylston,  69  Ga.  186. 

■»  Huseman  v.  Sims,  104  Ind.  317 ;  «  Guise  v.  State,  41  Ark.  249. 

Conwell  V.   Conwell,    100   Ind.  437;  •  Trager  v.  Feebleman  (Ala.),  10  So. 

Graham  v.  Crocket,  18  Ind.  119 ;  Has-  213. 

well  V.  Parsons.  15  Cal.  266 ;  Below  8  Blair  v.  Parker,  4  111.  App.  409. 

V.  Robbins,  76  Wis.  600 ;  State  v.  Har-  »  Paddock   v.   Balgord  (S.   D.),   48 

rington,  33  Mo.  App.  476 ;  Alsup  v.  N.  W.  840. 


D  E  BTOK  S    SO  n  K  D  U  LE. 


851 


especially  if  done  innocently,  and  if  the  omitted  articles  bear 
small  proportion  to  the  whole.  When  the  debtor  leaves  out 
money  or  anything,  it  is  held  that  the  plaintiff  waives  ob- 
jection to  the  omission  by  proceeding  to  contest  the  right  of 
exemption  without  pointing  out  this  defect  of  the  debtor's 
claim.  Upon  the  plaintiff's  showing  that  the  defendant  had 
money  to  a  large  amount  just  before  he  was  sued  and  before 
attachment  had  issued,  the  defendant  may  account  for  it  by 
showing  that  he  has  applied  it  to  his  debts.  If  he  has  paid 
it  out  before  receiving  a  demand  for  an  inventory,  it  cannot 
be  included  in  the  estimate  of  his  effects  made  to  ascertain 
the  amount  of  his  exemption.* 

1  Trager  v.  Feebleman  (Ala.),  10  So. 
213.  Clopton,  J. :  "  An  attachment 
sued  out  by  the  appellants  against 
the  appellee  January  1,  1890,  was 
levied  the  next  day  on  certain  per- 
sonal property.  On  the  same  day 
appellee  filed  with  the  officer  levying 
the  process  a  verified  claim  to  the 
property  as  exempt  under  section 
2521  of  the  Code.  Notice  thereof  hav- 
ing been  given  to  the  plaintiff's,  they 
instituted  a  contest  of  the  claim  in 
the  mode  prescribed  by  the  statute. 
It  may  be  conceded  that  the  claim  of 
exemption  filed  with  the  officer,  not 
having  been  accompanied  by  a  state- 
ment of  personal  property,  choses  in 
action,  and  money,  as  required  by 
section  2521,  was  insufficient.  In- 
stead of  objecting  thereto  on  this 
ground,  plaintiffs  made  a  written  de- 
mand upon  defendant,  August  16, 
1890,  to  file  in  the  circuit  court  a  full 
and  complete  inventory  of  all  his  per- 
sonal property,  except  such  as  is 
specially  exempt  from  levy  and  sale, 
all  moneys,  debts  and  choses  in  ac- 
tion belonging  to  him,  or  in  which 
he  is  beneficially  interested.  By  the 
written  demand  under  section  2525 
the  plaintiflfs  waived  the  objection  to 
the  sufficiency  of  the  claim  of  exemp- 
tion. Tonsmere  v.  Buckland,  88  Ala. 
313,  6  South.  Rep.   904.     Defendant 


having  filed  an  inventory  in  answer 
to  the  demand,  an  issue  was  formed 
under  the  direction  of  the  court. 
The  real  issue  in  such  contest  is 
whether  the  claimant  had  other  per- 
sonal property  or  choses  in  action  or 
money  not  embraced  in  the  inven- 
tory. But  it  is  unnecessary  to  con- 
sider the  propriety  of  the  ruling  of 
the  court  refusing  to  require  defend- 
ant to  join  in  the  special  issues  ten- 
dered by  plaintiffs.  Under  the  gen- 
eral issue  as  formed  they  were 
allowed  and  had  the  full  benefit 
which  they  could  have  derived  from 
the  special  issues.  The  refusal,  if 
erroneous,  is  error  without  injury. 
Plaintiffs  having  introduced  evidence 
showing  that  defendant,  shortly  be- 
fore the  issue  of  the  attachment,  re- 
ceived money  for  goods  sold,  and 
had  a  considerable  sum  in  his  posses- 
sion, it  was  competent  for  him  to 
show  that  he  had  appropriated  the 
money  to  the  payment  of  debts  justly 
due  by  him.  The  evidence  was  rele- 
vant to  the  issue,  whether  the  money 
belonged  to  him  or  was  in  his  pos- 
session when  the  written  demand  for 
an  inventory  was  made.  It  is  shown 
that  on  January  1,  1890,  the  same 
day  on  wliich  the  attachment  was 
issued,  defendant  handed  to  bis  clerk, 
who  is  his  brother,  a  sum  of  money, — 


852 


EXEMPTION    ENFORCED. 


When  no  schedule  has  been  filed  by  the  debtor,  it  is  safer 
for  the  officer  to  have  an  inventory  made  (of  the  property 
susceptible  of  being  claimed)  before  exposing  to  sale.^  The 
earlier  exemption  statutes  were  not  so  nearly  uniform  as  the 


.$500,—  which  he  directed  him  to  pay- 
to  his  mother  and  brother  on  account 
of  debts  which  he  owed  them  re- 
specti  vely,  and  get  their  receipts.  .  . 
The  well-settled  rule  is  that  when 
one  person  delivers  money  to  another, 
accompanied  by  a  mere  request,  with- 
out any  present  valuable  considera- 
tion, to  pay  it  to  a  third  person,  such 
request  does  not,  of  itself,  change  the 
ownership  of  the  money.  Coleman 
V.  Hatcher,  77  Ala.  217.  But  if  the 
money  is  subsequently  paid  to  such 
third  person,  and  he  receives  it  in 
payment  of  his  debt,  this  is  a  ratifi- 
cation of  the  unauthorized  act,  which 
operates,  by  relation,  to  change  the 
ownership  of  the  money  as  of  the 
time  of  its  delivery  to  the  receiver. 
Brooks  V.  Hildreth,  22  Ala.  469,  Un- 
til such  payment  or  ratification,  or 
until  the  depositary  has  entered  into 
some  arrangement  with  the  creditor, 
by  which  he  is  brought  under  obliga- 
tion to  hold  the  money  for  him,  and 
by  which  he  would  be  prejudiced  by 
a  revocation  of  the  original  direction, 
the  money  is  subject  to  garnishment 
in  his  hands.  The  mere  selection 
and  claim  of  certain  property  as  ex- 
empt, though  levied  on  by  attach- 
ment or  execution,  does  not  deprive 
the  defendant  of  the  right  to  prefer 
creditors,  and  apply  any  property  he 
may  own,  not  levied  on,  to  the  pay- 
ment of  their  just  debts.  Weis  v. 
Levy,  69  Ala.  209.  If  he  has  other 
property  or  money  which  may  be 
subjected  to  his  debts,  it  is  incumbent 
on  the  attaching  or  executing  cred- 
itor to  reach  and  subject  it  by  legal 
process.  Plaintiffs  had  the  right  to 
garnishee  the  clerk,  and  thereby  in- 


tercept the  payment  of  the  money  to 
the  mother  and  brother ;  but,  failing 
to  do  so,  they  acquired  no  lien  on  the 
money,  and  its  application  to  the  uses 
originally  intended  —  tlie  payment  of 
their  debts  —  offended  no  rights  of 
plaintiffs.  No  rights  of  theirs  inter- 
vened so  as  to  prevent  a  ratification 
from  having  the  same  force  and  ef- 
fect as  previous  authority  to  collect 
the  money.  Of  course,  this  rule  has 
no  application  if  the  defendant  there- 
by attempted  a  fraudulent  disposition 
of  the  money  as  against  his  existing 
creditors.  It  may  be  that,  had  the 
defendant  filed  an  inventory  when 
he  filed  his  claim  of  exemption  with 
the  officer,  such  inventory  should 
have  embraced  the  money  in  the 
hands  of  the  clerk,  which  had  not 
then  been  paid  to  the  creditors,  stat- 
ing the  facts.  It  had,  however,  been 
paid  over  when  the  written  demand 
was  made  for  an  inventory.  In  such 
case  the  issue  is  not  whether  the 
money  belonged  to  defendant  at  the 
time  he  filed  his  claim  of  exemption, 
but  whether  it  belonged  to  him  when 
the  written  demand  to  file  an  inven- 
tory in  the  circuit  court  was  made 
under  section  2525.  The  money  hav- 
ing been  paid  to  the  mother  and 
brother,  and  received  by  them  in  pay- 
ment of  their  debts,  before  the  writ- 
ten demand,  cannot  be  estimated,  if 
their  debts  be  just,  in  ascertaining 
the  amount  of  the  exemption  to 
which  defendant  is  entitled,  nor  de- 
ducted from  his  claim  of  exemp- 
tion.   .    .    ." 

1  Elliott  V.  Whitmore,  5  Mich,  53S, 
536. 


APPRAISEMENT.  853 

present  ones  are,  in  requiring  the  debtor  to  file  a  schedule  of 
his  property  when  exemption  of  chattels  to  a  limited  amount 
was  allowed.  Sometimes  the  appraisers  made  out  the  list  or 
inventory.^  'Now  the  claiming-  debtor  is  usually  required  to 
make  the  inventory  (when  the  chattels  are  not  absolutely  ex- 
empt) ;  but  a  substantial  compliance  is  held  satisfactory.^  If 
it  is  not  complete,  but  is  verified,  the  debtor  is  entitled  to  have 
an  appraisement.'  It  has  been  held  that  the  purchaser  gets  no 
title  when  the  sale  has  taken  place  before  the  debtor  has 
made  his  schedule;*  but  he  must  have  been  guilty  of  no  laches. 
If  the  officer  has  extended  the  time,  there  can  be  no  levy  or 
sale  meanwhile.'  The  debtor's  wife  may  make  and  submit  the 
schedule  of  her  husband's  property,  if  she  show  satisfactorily 
why  her  husband  does  not  do  so ;  without  so  showing,  her  act 
is  void.^  If  a  non-resident  may  lawfully  claim,  he  must  pre- 
sent his  schedule.^ 

What  is  not  scheduled,  and  what  is  scheduled  but  not 
claimed,  may  be  sold.^  AVhen  a  deserted  wife  sold  property 
of  her  husband  in  which  there  was  four  hundred  dollars'  worth 
that  might  have  been  claimed,  and  took  it  back  after  levy  upon 
it  by  a  creditor,  the  transaction  was  held  not  fraudulent.  She 
then  claimed  and  filed  a  defective  schedule,  but  the  court  held 
that  the  omission  of  some  of  the  property  was  not  fatal  to  her 
claim.'  The  sale  and  revocation  were  not  a  fraud  upon  cred- 
itors, because  the  property  was  susceptible  of  being  claimed  as 
exempt.*** 

§  2.  Schedule  and  Appraisement. 

After  the  debtor  who  claims  exemption  has  submitted  his 
schedule,  it  becomes  the  duty  of  the  officer  in  charge  of  the 
execution  to  summon  appraisers  and  have  all  the  articles  of 

1  Mark  y.  The  State,  15  Ind.  98.  Blair  v.  Parker,  4  III.  App.  409 ;  Aus- 

2  Gregory  v.  Latcheni,  53  lud.  449.  tin  v.  Swank,  9  Ind.  109;  Douch  v. 
3Douch  V.  Rahner,  61  Ind.  64.  Rahner.  61  Ind.  64;  State  v.  Read,  94 
^Chapen  v.  Hoel,  11  111.  App.  309.  Ind.  103;  Heath  v.  Keyes,  35  Wis. 
sPelkey  v.  People,  11  III.  App.  83.  668;  Megehe  v.  Draper,  21  Mo.  510; 
6Mapp  V.  Long,  63  Ga.    568;  Ga.  Elder  v.  Williams,  16  Nev.  416. 

Code,  §  2041.  &  Berry  v.  Hanks,  28  111.  App.  51. 

•Menzie  v.    Kelly,  8  III.   App.  2.59;  lo  7b.,- Green   v.  Marks,  25  111.  204; 

Biggs  V.  McKenzie,  16   III.  App.  386 ;  Ives  v.  Mills.  37  111.  75  :  Bliss  v.  Clark, 

Cook  V.  Bohl,  8  111.  App.  293.  39  III.  590. 
^»  Berry   v.  Hanks,  28  111.  App.  51 ; 


854  EXEMPTION    ENFORCED. 

property  appraised.  The  sheriff's  employees  are  not  com- 
petent to  act  as  appraisers.'  In  performing  their  duty,  the 
appraisers  must  take  actual  and  ocular  notice  of  all  the  chat- 
tels. If  even  one  article  be  appraised  as  a  matter  of  guess, 
without  actual  inspection,  the  whole  appraisement  will  be 
vitiated.  Property  sold  by  the  oificer  after  such  an  appraise- 
ment may  be  treated  as  not  appraised  and  therefore  illegally 
sold ;  so  the  debtor  may  regain  it  by  replevin.^  If  the  debtor 
himself  has  not  misled  the  officer;  has  not  caused  the  vitia- 
tion of  the  appraisement  by  secreting  chattels  or  the  like,  he 
has  a  right  to  complain  of  the  injury  done  him  by  an  invalid 
appraisement  and  sale.' 

When  duly  notified,  the  debtor  cannot  neglect  the  making 
of  his  schedule  without  forfeiting  his  right  to  the  exemption 
dependent  upon  selection.  Selling  the  property,  susceptible 
of  becoming  exempt  upon  scheduling  and  selecting,  will  not 
obviate  such  result  of  neglect.  The  purchaser  cannot  hold 
the  property  as  exempt,  if  he  bought  after  the  lien  of  judg- 
ment had  fastened  upon  it,  unless  the  debtor  (his  vendor)  filed 
his  schedule  and  claimed  his  privilege.  The  duty  of  the  judg- 
ment debtor  is  to  make,  and  swear  to,  his  list  of  property,  in- 
cluding debts  due  him ;  this  list  he  must  deliver  to  the  officer 
in  charge  of  the  writ  (unless  the  statute  requires  its  delivery 
to  the  clerk  and  its  being  filed  in  the  case).  After  the  inspec- 
tion of  the  tangible  articles  and  their  estimation  by  the  ap- 
praisers, the  debtor  chooses  so  many  and  so  much  as  will  be 
equivalent  to  the  monetary  maximum  of  exemption,  or  less. 
He  cannot  avoid  this  by  prior  selling  after  judgment.* 

The  schedule  is  of  the  debtor's  property  possessed  by  him 
on  the  day  of  taking  his  oath.^  The  officer  takes  the  schedule 
as  correct.  It  has  been  said  that  he  cannot  question  it  when 
it  is  duly  verified.^     It  is  not  his  business  to  question  it.     The 

1  Posey  V.  Loutey,  12  Phila.  410.  5  Taylor  v.  Beach,  14  111.  App.  259. 

2  Smith  V.  Dauel,  29  III.  App.  290.  SDouch  v.  Rahner,  61   Ind.  64,  68. 

3  Menzie  v.  Kelly,  8  111.  App.  261.  The  court  said  :  "It  was  the  sheriff's 
*Chapin  v.  Hoel,  11  111.  App.  .310;  duty  in  this  case,  after  the  appellee 

Blair  v.  Parker,  4  III.  App.  409 ;    Cas-  had  made  and  delivered  to  him  said 

per  V.  People,  6  111.  App.  28 ;  Cook  inventory,  schedule  and  affidavit,  and 

V.   Bohl,  8  111.  App.  293;    Camp  v.  had  designated  and  claimed  the  prop- 

Ganley,  6  111.  App.  499;  Stanton  v.  erty  levied  on  as  exempt  from  sale 

McMuUen,  7  IlL  App.  331.  on  said   execution,   to  ascertain,  ia 


APPRAISEMENT.  855 

plaintiff's  counsel  are  presumed  to  look  after  their  client's  in- 
terests; they  liave  means  at  command  to  counteract  a  wrong- 
ful appraisement  and  correct  a  false  schedule;  but  the  sheriff 
has  none  and  needs  none.  Though  in  charge  of  tlie  writ,  and 
bound  to  make  the  money  for  the  plaintiff  out  of  the  defend- 
ant's liable  property,  he  has  nothing  to  do  with  property 
which  has  been  selected  as  exempt  according  to  legal  direc- 
tion, and  within  the  statutory  limit  of  value. 

The  creditor's  objections  to  the  debtor's  allotment  of  ex- 
empt property,  real  or  personal  or  both,  must  be  made  so  that 
the  debtor  can  meet  them.  They  ma}''  be  filed  in  the  clerk's 
office  of  the  court  controlling  the  allotment,  and  must,  when 
the  statute  directs  it.^  The  returns  of  the  execution  should 
show  the  statutory  allotment  of  personal  property  to  the 
debtor,  which  becomes  final  upon  the  return,  so  far  as  others 
are  concerned;  but  the  debtor  may  have  omissions  of  the  ap- 
praisers corrected,  when  some  of  his  property  has  been  over- 
looked.^ 

Creditors  may  treat  the  report  of  the  appraisers  as  a  nul- 
lity when  it  appears  that  those  officers  were  not  sworn  and 
that  they  have  not  made  such  a  list,  describing  the  property, 
as  the  statute  requires  in  order  to  enable  creditors  to  know 
what  personal  property  is  legally  exempt.  The  same  apprais- 
ers may  lay  off  homestead  and  allot  chattel  exemption,  but 
they  must  proceed  according  to  law.' 

the  mode  prescribed  by  the  statute,  the  value  of  the  property  claimed  by 

the  value  of  the  property  clai.p.ed  as  him  as  exempt  did  not  exceed  three 

exempt;  and  having  ascertained  that  hundred    dollars,    he    was    entitled, 

such    property  was   of    no    greater  under    the    law,    to    'designate  the 

value  than  three  hundred  dollars,  it  property  so  claimed,'  and  it  was  the 

was  the  further  duty  of  the  sheriff  to  duty  of  the  sheriff  to  set  it  apart  to 

set  apart  such  property  to  the  appel-  him,  without  regard  to  the  truth  or 

lee,  as  exempt  from  sale  on  execu-  falsity  of  the  schedule." 

tion.    The  sheriff  was  not  authorized  i  McAuley  v.  Morris,  101  N.  C.  369: 

by  law  to  question  the  correctness  of  N.  C.  Code,  §  519. 

the  inventory,  schedule  and  affidavit  -^Pate  v.  Har[)er,  94  N.  C.  23.     See 

of    the    appellee,   or    to     determine  Burton  v.  Spiers,  87  N.  C.  87;  Duval  1 

whether  or  not  the  appellee's  sched-  v.  Rollins.  08  N.  C.  220;  Crummen  v. 

ule  was  a   true   schedule   of   all  his  Bennet,  GS  N.  C.  494.     As  to  revision 

property.     When  the  appellee  had  of  allotments,  see  Jones  v.  Com*rs,  85 

complied  with  the  requirements  of  N.  C.  278. 

the  statute,  and  it  appeared  that  he  3  Smith  v.  Hunt,  68  N.  C.  482. 
was  a  resident  householder,  and  that 


856  EXEMPTION    ENFORCED. 

The  defendant  should  exhibit  his  scheduled  effects  to  the 
appraisers.'  If  the  chattels  are  out  of  the  county,  that  fact 
does  not  exonerate  the  officer  from  the  duty  of  a])))ointing 
appraisers.^  If  property  is  levied  u])on  in  two  counties,  under 
one  judgment,  and  the  debtor  files  his  schedule  m  the  first 
county  and  makes  his  selection ;  and,  upon  the  sherifi''s  retain- 
ing the  selected  property,  files  his  schedule  in  the  second  and 
makes  his  selection,  he  is  not  responsible  for  not  surrendering 
the  property  selected  in  the  first  county  on  demand  of  the 
sheriff  of  the  second,  being  unable  to  comply  by  reason  of  the 
first  sheriff's  detention  of  it.  And  the  sheriff  of  the  second 
county  is  bound  to  respect  the  selection  there,  under  the  cir- 
cumstances.* 

When  property  has  been  scheduled,  appraised  and  set  off  to 
the  debtor  in  one  suit,  must  the  same  process  be  undergone  in 
a  subsequent  suit,  soon  following  the  first,  instituted  by  an- 
other creditor?  As  a  general  rule,  the  repetition  would  be 
unavoidable,  *  though  only  one  exemption  can  be  allowed, 
however  many  the  suits.' 

§  3.  Appraisement  of  the  Widow's  Allowance. 

Appraisement  is  not  necessary  when  a  fixed  sum  is  exempt 
for  the  widow  and  she  agrees  to  take  the  cash  from  proceeds 
of  sale.^  It  is  useless  to  appraise  money."  When  she  selects 
goods,  the  appraisement  should  be  made  promptly ;  and  when 
the  law  has  provided  that  the  estimate  shall  be  made  by  ap- 
praisers, their  decision  cannot  be  reviewed  or  set  aside  by 
other  officers  not  empowered  to  do  so  by  statute.^  The  power 
to  confirm  or  set  aside  is  only  in  the  court,  to  be  exercised 
upon  issue  duly  made.  When  an  orphan's  court  had  con- 
firmed the  appraisement  of  goods  to  the  extent  of  three  hun- 
dred dollars  for  the  widow  of  a  decedent  pursuant  to  statute, 
Judge  Black  said  for  the  court  on  appeal  of  the  case :  "  We 
think  that  the  confirmation  of  the  appraisement  was  an  adju- 

1  Lansden  v.  Hampton,  88  111.  App.        6  Sellers'  Est/ite,  82  Pa.  St.  153. 
\W.  '  Peterman's  Appeal,  76  Pa.  St.  116 ; 

2  76.  Baldy's  Appeal,  40  Pa.  St.  328;  Lar- 
*Keefer  v.  Guffin,  38  111.  App.  622.     rison's  Appeal,  36  Pa.  St.  130. 
«WelIer  v.    Moore,   50    Ark.   253.        ^Vandevort's  Appeal,  43    Pa.   SL 

But  .see  Austin  v.  Swank,  9  Ind.  109.     462. 
6  Weis  V.  Levy,  69  Ala.  209. 


KEMEDIES  FOR  WRONGFUL  LEVY.  857 

dication  of  the  property  mentioned  in  the  inventory  to  the 
widow.  It  was  conclusive  against  the  creditor,  for  it  was  a 
judgincnt  in  rem  which  determined  forever  the  status  of  a 
thing  and  was  binding  upon  the  world.  Afterwards  it  was 
the  widow's  property  absolutely.'"  Tiie  reader  perceives 
that  the  confirmation  is  held  to  be  res  adjudicata  quoad 
omnes,  not  mereh'  as  to  creditors  cited;  a  general  proceeding 
i7i  rem,  not  a  limited  one.  Whether  the  world  was  concluded 
depends  upon  the  notice;  upon  everybody's  having  had  op- 
portunity to  o])])ose  the  creating  of  such  status.  The  con- 
firmation was  binding  on  the  creditor,  doubtless. 

When  the  widow's  title  to  her  exemption  vests  in  her  at  the 
death  of  her  husband,  she  cannot  acquire  any  additional  right 
by  the  appraisement  of  the  propert3\  Appraisement  may  be 
necessary  to  sever  her  portion  from  a  mass,  or  to  relieve  the 
administrator  of  responsibility,  and  to  enable  him  to  know 
what  property  is  under  his  administration.'^ 

§  4.  Remedies  for  Wrongful  Levy. 

Concurreut  remedies:  The  officer  wdio  disregards  an  ex- 
emption claim  may  be  sued  by  the  beneficiary  for  failure  of 
duty,  or  he  may  be  compelled  by  mandamus  to  have  the 
property  appraised  and  the  exemption  ascertained,  or  he  may 
be  enjoined  from  selling  the  non-liable  Chattels.*  On  the 
other  hand,  he  may  defend  himself  when  sued  by  averring 
and  proving  that  the  property  is  exempt  or  not  exempt,  as 
the  case  may  be ;  for  he  may  have  been  sued  by  the  creditor 
for  not  levying  upon  certain  property,  or  by  the  debtor  for 
levying  upon  it,  or  by  some  other  officer  for  the  disturbance 
of  his  possession.^  An  officer  can  maintain  an  action  as  plaint- 
iff to  relieve  himself  of  the  obligations  which  he  is  under  to 

1  Runj'an's  A*ppeal,  27  Pa.  St.  121.  have  the  proceeds  of  the  sale  paid  to 

2  York  V.  York,  38  111.  522  (.see  note  her  in  an  amount  equivalent  to  her 
of  Hon.  Levi  North) ;  Hastings  v.  interest  in  the  property.  Sheldon  v. 
Meyers,    21    Mo.    519 ;     Kellogg    v.  Bliss.  8  N.  Y.  31. 

Graves,  5  Ind.  509;  Sheldon  v.  Bliss,  3  Cunningham  v.  Conway,  25  Neb. 

4  Seld.  (N.  Y.)  34.     In  New  York,  if  615;  Johnson  v.  Hahn,  4  Neb.  149; 

the  appraisers  fail  to  set  off  the  ex-  Mohawk  R.  Co.  v.  Artcher,  6  Paige, 

emption  to  which  the  widow  is  en-  83 ;    Belknap  v.   Belknap,   2  Johns, 

titled  from  her  husband's  estate,  and  Chan.  463. 
the  executor  sells,  the  surrogate  may 


858  EXEMPTION   ENFORCED. 

the  parties  interested  in  any  attachment  or  levy  made  by 
him.^  It  is  safer  for  the  officer  to  make  the  levy  when  there 
is  no  specific  exemption  and  no  claim  made.^ 

The  writ  of  fieri  facias  protects  the  officer  in  seizing  prop- 
erty liable  to  execution  belonging  to  the  judgment  debtor, 
provided  the  writ  itself  is  valid  and  issued  by  a  court 
clothed  with  jurisdiction ;  but  the  writ  will  not  pr^>tect  him 
if  he  seize  property  which  is  exempt  after  notice,  and  if  he 
proceed  to  sell  with  knowledge  of  the  defendant's  rightful 
claim.''  He  must  not  fail,  however,  to  give  the  notice  if  the 
debtor  is  in  the  county.* 

Receiver:  When  a  suit  has  been  brought  to  recover  for 
the  conversion  of  chattels  exempt  and  a  receiver  of  the 
plaintiff's  property  has  been  appointed  in  proceedings  to  sup- 
plement the  execution,  does  the  plaintiff's  right  in  the  pend- 
ing action  pass  over  to  the  receiver?  Under  such  a  state  of 
things,  the  judge  answered  the  question  as  follows:  "  I  think 
it  clear  that  this  right  of  action  did  not  pass  to  the  receiver. 
It  was  founded  upon  injur}'  to  property  which  the  creditor 
had  no  claim  to  have  applied  to  the  payment  of  his  debt. 
The  property  was  taken  from  the  respondent  without  his 
consent,  and  he  had  the  right  of  election,  either  to  prosecute 
the  action  to  judgment  and  collect  damages  or  discontinue 
the  same  and  sue  to  recover  the  possession  of  the  specific 
property.  With  the  exercise  of  this  right  neither  the  credit- 
ors of  the  respondent  nor  the  receiver  could  at  all  interfere. 
The  right  of  action  not  resting  in  the  receiver,  there  is  no 
ground  for  claiming  that  the  judgment  thereafter  recovered 
vested  in  him;  consequently,  the  judgment  debtor  had  no 
right  to  pay  the  same  to  the  receiver,  and  such  payment  did 
not  satisfy  the  judgment."^ 

Does  the  appointment  of  a  receiver  of  the  defendant's 
property  in  a  pending  action  authorize  that  officer  to  take 

1  Connaughton  v.  Sands,  33  Wis.  ^jjoyt  v.  Van  Alstyne,  15  Barb. 
387;  Main  v.  Bell,  27  Wis.  519.  See  568.  See  Duncan  v.  Spear,  11  Wend. 
Earl   V.  Camp,   16  Wend.  562,   571;    54. 

Smith    V.    Hili,    22    Barb.   656,   659.        *  Foote  v.  People,  12  111.  App.  94 
Compare  Cornell  v.  Dakin,  38  N.  Y.        &  Andrews  v.  Rowan,  28  How.  Pr. 

253.  126;  Hudson  v.  Plets,  11  Paige,  180, 

2  Abbott  V.  Gillespy,  75  Ala  180. 


REMEDIES  FOE  WRONGFUL  LEVY.  859 

charge  of  the  defendant's  exempt  property?  The  court, 
while  answering  "No,"  said  the  question  was  important  for 
review  and  decision,  affecting  a  multitude  of  cases  arising 
daily.  Statutory  provisions  relative  to  proceedings  supple- 
mentary to  execufion  were  examined,  prior  decisions  reviewed 
and  a  negative  answer  reached.^ 

Damages:  Though  the  statute  may  give  double  or  treble 
damages  against  a  trespasser  who  wrongfully  takes  and  sells 
a  judgment-debtor's  exempt  goods,  yet  the  injured  party  may 
proceed  by  the  ordinar}'^  action  of  trespass,  and  recover  single 
damages.  Certainly,  the  wrong-doing  officer  cannot  complain, 
as  defendant  in  such  action,  that  he  was  not  sued  for  more.^ 
While  double  damages  may  be  recovered  against  the  officer, 
only  single  can  be  awarded  against  his  surety ;  and  only  single 
when  both  are  sued  together.' 

If  an  article  is  specifically  exempt  by  statute,  and  the  debtor 
does  not  point  out  other  property  as  liable,  the  sheriff  will 
seize  and  sell  such  article  at  his  peril ;  for  the  debtor  is  not 
obliged  to  turn  out  something  else.^  The  officer's  process  will 
not  justify  his  action;  his  adjudication  at  the  sale  will  not 
convey  the  property.^ 

It  is  trespass  for  an  officer  to  seize  and  sell  exempt  property, 
and  the  action  of  trespass  will  lie  unless  the  statute  has  pro- 
vided some  other  form  of  remed3^'^  The  statutory  action  may 
be  that  of  trespass,  even  when  double  or  treble  the  value  of 
the  goods  taken  are  recoverable.'  The  jury's  estimation  of 
damages  should  be  regarded  as  the  single  value  of  the  exempt 
goods  wrongfully  attached,  or  othervvise  seized,  it  has  been 
repeatedly  declared,^  unless  they  have  been  instructed  to  find 

1  Finnin  v.  Mallo3-,  33  N.  Y.  Supe-  5  Williams  v.  Miller,  16  Ct.  143 ; 
rior,  383 ;  N.  Y.  Code,  §g  297-8.  In  Johns  v.  Chitty,  1  Burr.  32. 
Georgia  a  receiver  is  appointed  by  6  Dow  v.  Smith,  7  Vt  465 ;  Leavitt 
the  court  on  its  own  motion  when  v.  Holbrook,  5  Vt  405 ;  Hart  v.  Hyde, 
the  personal  property  of  the  debtor  5  Vt.  328;  Haskill  v.  Andros,  4  Vt. 
exceeds  the  amount  which  is  exempt  609  ;  Fiy  v.  Caufield,  4  Vt  9 ;  Spooner 
by  law,  as  shown  by  the  schedule,  v.  Fletclier,  3  Vt  133;  Kilburn  v. 
McWilliams  v.  Bones,  84  Ga.  199.  Demming,  2  Vt  404;  Leavitt  v.  Met- 

2  Amend   v.  Murphy,  69  111.   337;  calf,  2  Vt  342. 

Cornelia  v.  Ellis.  11  111.  584;  Pace  v.  "Wymondv.  Amsbury,  2Colo.  213; 

Vaughan,  1  Gil.  30.  Colo.  Rev.  Stat  380. 

*  Camp  V.  Gauley,  6  111.  App.  499.  ^  Newcomb  v.  Butterfield,  8  Johns. 

*i^.  343;    Wai-ren    v.   Doolittle,  5   Cow. 


8G0  EXEMPTION    ENFORCED. 

double  or  treble  damages.^  If  single  damages  are  returned, 
and  the  jury  meant  no  more,  the  court  may  treble  the  verdict 
under  such  statutory  provision  as  that  above  mentioned.  If 
there  are  no  means  of  knowing  whether  the  jury  have  assessed 
single  or  double  or  treble  damages,  the  court  ought  not  to  in- 
crease them ;  for  it  would  be  monstrous  to  inflict  upon  the 
trespasser  nine  times  the  loss  he  has  caused  —  which  would 
be  done  were  the  jury  to  assess  treble  damages  and  the  court 
to  presume  single  damage  and  then  treble  it  in  the  judgment. 

The  officer  is  guilty  of  no  trespass  in  attaching  or  levying 
upon  property  which  is  not  absolutely  exempt,  and  which  has 
not  been  selected  after  appraisement.  He  must  have  time 
to  make  his  inventory  and  take  the  steps  necessary  to  ascer- 
tain the  status  of  the  property  —  whether  liable  or  not.^ 
Where  a  statute  inhibits  the  seizure  of  chattels  to  the  amount 
of  a  stated  sum,  the  obvious  meaning  is  that  they  shall  not  be 
seized  when  ascertained  to  be  of  that  value  or  less.* 

So  when  household  furniture  is  exempt,  and  there  is  a  ques- 
tion whether  the  furniture  seized  is  used  or  meant  to  be 
used  by  the  debtor  in  his  household,  the  officer,  while  holding 
them  preliminary  to  the  settling  of  such  question,  ought  not 
to  be  condemned  as  a  trespasser.  Especially,  when  the  debtor 
is  not,  and  was  not  at  the  time  of  the  levy,  the  custodian  or 
lawful  possessor  of  the  goods.  He  may  be  the  general  owner, 
yet  if  another  is  in  lawful  possession,  and  has  special  ))rop- 
erty  in  the  goods,  the  general  owner  can  sustain  neither  tres- 
pass nor  trover,  it  has  been  held.'* 

When  personal  exemption  is  for  the  benefit  of  the  wife  and 
children  of  the  debtor,  an  action  for  the  conversion  of  it  may 

684 ;  Beekman  v.  Chalmers,  1  Cow.  plevin,  take  it  from  the  possession  of 

584;  Cooper  v.  Maupin,  6  Mo.  634.  any  person  wlio  unlawfully  held  it, 

1  Brewster  v.  Link,  28  Mo.  148.  unless  it  was  in  the  custody  of  the 

2  Bounel  V.  Dunn,  39  N.  J.  L.  435.  law.  If  wrongfully  taken  by  virtue 
Same  title,  38  lb.  153  (Nix.  Dig.  249,  of  legal  process,  the  remedy  of  the 
351).  Citing  The  Six  Carpenters'  owner  was  by  action  of  trespass  or 
Case,  8  Coke,  290 ;  Waddel  v.  Cook,  2  trover  against  the  officer ;  for  the 
Hill,  47.  common  law  would  not  grant  pro- 

3  lb.  cess  to  take,  from  an  officer,  goods 
*  Bourne  v.  Merritt,  22  Vt.  429.     In     which  he  had  taken  by  legal  process 

Funk  v.  Israel,  5  la.  450,  it  is  said :  already  issued.  Cromwell  v.  Owings, 
"  At  common  law,  the  owner  of  a  7  Harr.  &  Johnson,  55 ;  Ilsley  v. 
chattel  might,  by  the  action  of  re-    Stubb,  5  Mass.  380." 


DAMAGES  —  CLA.IM    FOR    EXEMPTIOX,  861 

be  brought  by  them,  or  by  the  debtor  himself,  under  statu- 
tory autliorization  as  interpreted.' 

It  has  been  held  that  a  tenant  in  common  may  recover  dam- 
ages for  the  execution  sale  of  chattels  claimed  as  exempt.  The 
thing  sold  may  be  indivisible,  yet  the  tenant  in  common  may 
have  damages  —  double  damages  under  a  statute  awarding 
them  to  owners  without  designating  this  particular  class  of 
[)roprietors.  The  court,  so  holding,  pointed  out  distinction 
between  partnership  and  co-tenancy,  as  to  the  nature  of  the 
title.- 

A  mortgagee  in  possession  of  exempt  property,  or  having 
the  right  of  possession,  has  his  action  for  its  conversion.' 

§  5.  Damages  Dependent  on  Legality  of  Claim  for  p]x- 
emption. 

Though  an  officer  in  charge  of  an  attachment  disregard  a 
claim  of  exemption,  he  will  not  be  liable,  if  the  claim  was 
unfounded  and  the  property  attachable,  and  the  proceeds  of 
sale  were  duly  applied  to  the  debt.  The  plaintiff,  in  his  action 
against  the  officer  for  damages,  cannot  show  that  he  has  been 
injured,  under  such  circumstances.*  But  an  officer  has  no 
right  to  disregard  a  claim  for  exemption  because  the  creditor 
has  told  him  that  the  claim  is  not  well  founded  in  law,  that 
the  debtor  has  denied  ownership  in  himself  and  alleged  it  to 
be  in  his  wife,  or  anything  of  the  kind.  If  the  debtor  was 
found  in  possession,  and  no  waiver  of  his  legal  right  has  been 
duly  made  and  properly  brought  to  the  knowledge  of  the 
sheriff,  that  officer  is  culpable  for  heeding  the  mere  state- 
ments of  the  creditor  so  far  as  to  go  on  and  sell  the  exempt 
goods.  On  the  contrary,  it  is  his  duty  to  have  these  goods 
set  apart  to  the  debtor,  after  appraisement;  and  he  cannot 
demand  an  indemnifying  bond  of  the  debtor  before  taking 
such  action.* 

1  Brasvvell  v.  McDaniel,  74  Ga.  319 ;  Tannahill  v.  Tuttle,  3  Mich.  104.  See 
Ga.  Code,  §  2040.  Buik  v.  Webb,  33  Mick  173. 

2  Trowbridge  v.  Cross,  117  III.  109 ;  *  Bryan  v.  Kelly,  85  Ala.  569 ;  Ab- 
Servanti  v.  Lusk,  43  Cal.  238:  Rad-  bott  v.  Gillespy,  75  Ala.  180;  Wilson 
cliffe  V.  Wood,  25  Barb.  52.  v.  Strobach,  59  Ala.  488. 

^Ganong  v.   Green,   71    Mich.    1;        5  Williamson   v.   Krumbhaar,    132 
Harvey  v.  McAdams,  33  Mich.   472 ;     Pa.  St  455. 
Worthington  v.  Hanna,  23  Mich.  520 ; 


862 


EXEMPTION    ENFORCED. 


The  debtor,  suing  an  ofRcer  for  taking  his  exempt  property, 
must  show  that  he  has  complied  Avith  the  statute,  exhibited 
his  affidavit  that  he  is  the  head  of  a  family  (and  whatever 
else  is  required),  to  the  ofRcer,  in  due  time.^  The  statutory 
affidavit  must  precede  such  suit,^  unless  the  action  be  insti- 
tuted by  a  purchaser  from  the  debtor.' 

In  a  suit  involving  the  possession  of  property,  he  who  al- 
leges that  he  had  claimed  it  as  exempt,  in  form  and  substance 
according  to  statute,  before  its  wrongful  sale  by  the  sheriff, 
must  also  set  up  title  to  make  his  pleading  sufficient  on  de- 
murrer.* He  is  held  to  a  substantial  compliance  with  the 
statute,  and  must  plead  that  fact  but  need  not  set  out  all  the 
particulars.  So  far  as  the  officer  is  concerned,  he  is  bound  to 
take  the  sworn  statement  of  the  debtor  when  there  is  no 
ground  fbr  refusing  beyond  his  own  doubt  of  its  truth.* 

In  a  suit  against  a  sheriff  for  refusing  to  allow  the  debtor 
to  select  the  ]iersonal  property  exempt  by  statute,  the  plaint- 
iff's allegation  that  the  sheriff,  by  his  deputy,  did  convert  the 


1  Gamble  v.  Reynolds,  43  Ala.  236. 

2  Simpson  v.  Simpson,  30  Ala.  225. 

3  Cook  V.  Baine,  37  Ala.  350. 

*  Over  V.  Shannon,  75  Ind.  352. 

5  In  Indiana,  the  claimant  of  ex- 
emption is  held  to  a  substantial  com- 
pliance with  the  statute;  in  plead- 
ing that  he  has  thus  complied  he 
need  not  set  forth  his  schedule  or 
make  it  an  exhibit.  Stallings  v. 
Reed,  94  Ind.  103;  Hall  v.  Hough,  24 
Ind.  273.  The  claim  may  be  set  up' 
before  or  after  the  levy,  lb.;  Pate 
V.  Swann,  7  Blackf.  500.  This  quo- 
tation is  from  the  case  first  cited 
above:  "A  constable  is  bound,  at 
his  peril,  to  accept  a  proper  schedule 
when  duly  tendered  b^'  the  debtor, 
and  if  he  levies  after  the  tender  of  a 
proper  schedule  he  is  a  trespasser. 
Stephens  v.  Lawson,  7  Blackf.  275. 
The  officer  cannot  dispute  the  truth 
of  the  schedule,  but  must  act  upon 
it  and  set  apart  the  property  claimed 
by  the  debtor,  even  though  the  latter 
owi\s  property  not  exhibited  in  the 


schedule.  Douch  v.  Rahner,  61  Ind. 
64  A  mandate  will  lie  to  compel 
the  sheriff  to  set  apart  the  property 
designated  by  the  debtor.  Young  v. 
Baxter,  55  Ind.  188 ;  Pudney  v.  Burk- 
hart,  62Ind.  179;  Mark  v.  State,  15 
Ind.  98.  See  Michael  v.  Eckman 
(Fla.),  7  So.  365.  The  right  of  the 
debtor  to  claim  the  property  need 
not  be  exercised  until  after  appraise- 
ment, and  he  may  then  designate  the 
property  he  selects  to  claim.  Kelley 
V.  McFadden,  80  Ind.  536.  It  ap- 
pears from  the  decisions  to  which 
we  have  referred  that  the  debtor  is 
favored  in  the  matter  of  exemption, 
and  that  the  officer  is  placed  in  a  sit- 
uation of  difficulty  and  embarrass- 
ment ;  for,  if  he  rejects  a  schedule 
which  is  in  substantial  compliance 
with  the  statute,  he  is  liable  to  the 
debtor."  .  .  .  Judge  Elliott.  The 
debtor  should  make  affidavit  that  the 
schedule  contains  a  list  of  all  his 
personal  property.  Taylor  v.  Beach, 
14  111.  A  pp.  259. 


REPLEVIN.  863 

property  to  his  own  use,  was  a  sufficient  averment  that  the 
(ie))uty  was  acting  under  tlic  defendant  as  sheriff.^ 

When  only  costs  recoverahle:  In  a  suit  for  conversion,  only 
damages  for  costs  and  other  actual  losses  can  be  recovered 
when  the  debtor  has  bought  the  property  itself  at  the  public 
sale.^  If  the  owner  has  the  property,  even  though  he  bought 
it  from  a  purchaser  at  the  sale,  he  cannot  have  it  and  yet  re- 
cover the  price  of  it  from  the  officer,  if  he  has  lost  nothing  ex- 
cept costs  and  expenses  incident  to  the  sheriff's  wrong-doing.^ 
This  is  not  to  be  understood  as  meaning  that  he  may  be  made 
the  loser  of  his  exempt  property,  so  that  he  has  to  buy  it  back, 
and  yet  have  no  redress. 

Judgment  against  the  creditor  and  the  seizing  officer,  for 
trespass  in  taking  and  selling  exempt  property,  is  not  conclu- 
sive that  the  trespass  was  intentional  and  wilful."*  Judgment 
declaring  certain  propert}'-  subject  to  levy  has  been  held  res 
judicata  J' 

§  6.  Replevin. 

Officers  cannot  be  made  to  give  up  property  which  they  have 
levied  upon,  by  the  claimant's  replevin,  when  he  claims  per- 
sonal property  exemption  in  lieu  of  realty  exemption  or  home- 
stead, unless  he  has  made  and  filed  his  schedule  or  inventory 
of  property,  and  has  selected  his  portion  after  appraisement, 
where  the  statute  requires  his  compliance  with  these  condi- 
tions. The  requirement  is  not  merely  directory.®  If,  after 
his  compliance  respecting  the  inventory,  the  officer  refuses  to 
have  the  appraisement  made,  he  may  be  compelled  by  man- 
damus.'    He  cannot  release  attached  property  after  having 

1  Hutchinson  v.  Whitmore  (Mich. ),  ^  Dipert  v.  Jones  (IncL),  30  N.  E. 
51  N.  W.  451,  citing  Howell's  Stat,    419. 

eh.  266.  55  37  (8),  and  distinguishing,  ^Mann   v.   Welton,   21   Neb.   541; 

as  to  the  right  of  selection,  McCoy  v.  Neb.  Civ.  Code,  §§  521-2;  Settles  v. 

Brennan,  61  Mich.  362.  Bond,   49    Ark.    114;    Chambers    v. 

2  Northrup  v.  Cross  (N.  D.),  51  N.  Perry,  47  Ark.  400. 

W.  719;  Ford   v.  Williams,  24  N.  Y.  Ub.;  Metz  v.  Cunningham,  6  Neb. 

359 ;.  Baker  v.  Freeman,  9  Wend.  36 ;  92 ;  People  v.  McClay,  2  Neb.  8.    See 

Mclnroy  v.  Dyer,  47  Pa.  St  118.  Axtell  v.  Warden,  7  Neb.  182;  Will- 

^  Leonard  v.   Maginnis,   34   Minn,  iams  v.  Golden,   10  Neb.   432 ;  Neb. 

506 ;  Sprague  v.  Brown,  40  Wis.  612.  Gen.  Stat  618. 

*  Stanton  v.  McMuUen,  7  111.  App. 
326. 


S64  EXEMPTION    ENFORCED. 

made  his  return  showing  what  he  has  seized,  till  ordered  by 
the  court  which  issued  the  writ,  though  a  higher  court  has  di- 
rected the  lower  one,  by  inaridamus,  to  issue  a  supersedeas) 

As,  the  debtor  is  not  confined  to  a  single  remedy  against 
the  officer,  he  may  proceed  by  replevin,  or  he  may  choose  a 
statute  remedy  when  one  is  accorded  to  him.^  He  may  sue 
for  the  value  of  exempt  property  wrongfully  sold.'^ 

Are  damages  exempt?  It  is  held  that,  though  an  exemp- 
tionist  may  reclaim  property  by  replevin  and  recover  what- 
ever profits  the  wa'ong-doer  may  have  gained  by  the  detention 
of  it,  the  damages  for  such  profits  are  not  exempt  —  they  do 
not  take  the  character  of  the  property  in  this  respect.* 

A  sheriff,  against  whom  judgment  had  been  rendered  for 
the  conversion  of  exempt  property,  paid  the  amount  of  it,  not 
to  the  owner  who  had  been  bereft  of  the  property  and  who 
had  recovered  the  judgment  for  the  conversion,  but  to  another 
sheriff  who  held  an  alias  fi.  fa.  against  the  owner.  In  other 
words,  after  the  property  had  been  wrongfully  converted  to 
pay  the  original  creditor,  the  wrong-doing  sheriff  sought  to 
put  the  money  recovered  of  him  therefor  into  the  hands  of 
another  sheriff  to  be  wrongfully  converted.  What  was  ad- 
judged to  be  due  by  the  first  sheriff  for  selling  exempt  prop- 
erty was  no  more  liable  than  the  property  itself  had  been.^ 
The  judgment  for  wrongful  conversion  stood  for  the  exempt 
property  converted.^ 

§  7.  Burden  of  Proof. 

The  law  shows  what  is  exempt,  but  the  facts  which  bring 
claimed  property  within  the  law  must  be  proved  by  the 
claimant.     If  the  value  of  the  claimed  property  is  proved, 

1  Farris  v.  State.  33  Ark.  70.  sorted  to  in  actions  against  the  sher- 

2  In  Mississippi  it  has  been  held  that  iff.  Hopkins  v.  Drake,  44  Miss.  619 ; 
exempt  property  of  the  judgment-  Ford  v.  Dyer,  25  Miss.  343;  Yai'bor- 
debtor  may    be  replevied    by   him,  ough  v.  Harper,  25  Miss.  112. 

after  having  been  levied  upon  by  the  ^^tjigon  v.  Gibbs,  53  Mich.  280. 

sheriff  in  execution,  though  that  is  ■'Johnson  v.  Edde,  58  Miss.  664. 

not  his  only  remedy.     Code  of  1871,  sgelow  v.  Robbius,  76  Wis.  600. 

§  2134;  Ross  v.  Havrthorne,  55  Miss.  6  Tillotson  v.  Wolcott,  48  N.  Y.  188, 

551 ;  Mosely  v.    Anderson,   40  Miss.  190;  Commissionei-s  v.  Riley,  75  N.  C. 

50.     The  debtor  had  also  a  remedy  144.     Compare  Mallory  v.  Norton,  21 

under  the  code.     lb.    The  remedy  Barb.   424,   and  Temple  v.  Scott,  3 

by  replevin  had  been  frequently  re-  Minn.  806. 


IJUliDKN    OF    PROOF.  865 

and  the  character  of  it  shown,  still  he  must  prove  that  he  is  a 
householder  and  has  a  family,  when  that  fact  is  requisite.  If 
all  this  be  established,  it  must  yet  be  made  to  appear  that  he 
has  not  "  retained  a  sufficient  amount  to  satisfy  any  claim  he 
could  make  for  exempt  property." '  The  law  does  not  pre- 
sume that  the  chattels  levied  upon  are  all  the  property  he 
possesses.  The  rule,  when  the  exemption  is  not  specific,  is 
that  the  onus  is  on  him  to  show  that  he  is  within  the  statute 
in  respect  to  his  means.^ 

All  personal  property  is  liable  to  execution  on  a  judgment 
against  its  owner,  as  a  general  rule:  so,  if  he  plead  anything 
to  take  it  out  of  the  rule,  the  burden  is  on  him  to  sustain  his 
plea.  lie  who  sets  up  exemption  must  prove  it.  But  there 
is  the  principle,  that  when  exemption  exists,  and  he  sells  the 
exempt  property,  and  creditors  charge  that  the  sale  is  in 
fraud  of  their  rights,  it  is  incumbent  upon  them  to  establish 
the  fraud.  As  to  property  really  exempt,  there  are  no  creditors ; 
there  are  none  to  claim  injury  by  any  disposition  which  the 
debtor  may  have  made  of  property  which  they  never  could 
have  reached.'  But  are  creditors  bound  to  show  that  prop- 
erty, which  they  claim  to  have  been  fraudulently  sold  by  the 
debtor  to  defeat  their  judgment,  was  not  exempt  ?  Must  they 
prove  a  negative?  It  was  held  under  a  statute  requiring  the 
debtor  to  schedule  his  property  and  specify  that  claimed  as 
exempt,  that  the  burden  of  such  a  matter  is  on  him  and  not 
on  his  creditors,  and  that  even  when  they  had  charged  fraud 
as  above  suggested,  they  were  not  bound  to  show  that  the 
property  would  not  have  been  exempt,  had  the  debtor  made 
no  disposition  of  it.* 

1  Tuttle  V.  Buck,  41  Barb.  417 ;  Grif-  v.  Sly,  44  Ind.  207.    (Euper  v.  Alkire, 

fln  V.  Sutherland,  14  Barb.  456 ;  Carn-  37  Ark.  283,  distinguished  as  not  ap- 

rick  V.  Myers,  14  Barb.  9 ;  Willson  v.  plying  to  personalty.) 
Ellis,  1  Denio.  463;  Brown  v.  Davis.        sciark  v.  Anthony,  31  Ark.  546; 

9  Hun,  43 ;  Seaman  v.  Luce,  23  Barb.  Erb  v.  Cole,  31  Ark.  557 :  Stanley  v. 

240  ;■  Brooks   v.  Hathaway,  8  Hun,  Snyder,  43  Ark.  434 :  Bogan  v.  Cleve- 

290 ;  Van  Sickler  v.  Jacobs,  14  Johns,  land,  52  Ark.  101. 
434 ;  McCoy   v.    Dail,    6    Bax.    137 ;        <  Blythe  v.  Jett,  53  Ark.  547  (Mansf. 

Blythe  v.  Jett,  52  Ark.  547.  Dig.,  §  3006),  overruling  on  this  point, 

2McMasters  v.  Alsop,  85  111.  157;  Erb  v.  Cole,  supra,  and  citing  T>a.via 

Bonnell    v.    Bowman,    53    111.   460 ;  v.  Prosser,  32  Barb.  290.  and  several 

Smothers  v.  Holly,  47  111.  331 ;  Finley  other  cases.     In  California  creditora 
55 


866  EXEMPTION    ENFORCED. 

The  transcript  of  a  declaration  makes  proof  of  it ; '  bat  if  it 
shows  itself  invalid  as  to  the  pending  execution  in  the  case  in 
which  it  is  offered,  and  is  not  supported  by  an  affidavit,  it  may 
be  disregarded.^ 

§  8.  Laches  and  Passive  Waiver. 

Exemption  may  be  forfeited  by  not  claiming  it." 
If  the  officer  neglects  the  duty  of  giving  the  debtor  his 
opportunity  of  designating  the  chattels  to  be  held  exempt, 
the  debtor  does  not  forfeit  his  right  by  not  claiming  immedi- 
ately upon  learning  of  the  levy.  lie  may  be  silent  yet  not 
estopped  when  no  expense  is  caused  thereby,  it  is  said  in  ex- 
position of  statute.^  A  failure  to  demand  exemption  at  the 
time  of  the  levy  does  not  everywhere  work  forfeiture;^  and  it 
has  been  held  that  disclaimer  of  ownership  by  the  debtor 
does  not  estop  him,  if  the  officer  is  not  shown  to  have  been 
influenced  by  it.^ 

A  request  by  an  absent  debtor,  made  to  a  judgment  creditor 
by  letter,  that  the  latter  would  postpone  execution,  is  not  to 
be  considered  as  implying  a  waiver  of  exemption.^  Standing 
by,  and  not  objecting,  is  waiver,  when  the  statute  points  out 
the  time  and  manner  of  claiming.^  A  wife  was  presumed  to 
have  waived  her  exemption  in  community  property  when  her 

opposing  the  granting  of  exemption  Richards  v.  Haines,  30  la.  574 ;  Ham- 
to  their  debtor  need  file  no  paper  if  mersmith  v.  Avery, .  18  Nev.  225 ; 
he  has  ah-eady  petitioned  for  exemp-  Boesker  v.  Pickett,  81  Ind.  554 ;  State 
tion.     In  re  Baldwin,  71  Cal.  74.  v.  Melogne,  9  Ind.  196 ;  Butt  v.  Green, 

1  Stevenson  v.  Moody,  85  Ala.   83.  29   O.    St.  667 ;   Russell  v.  Dean,  30 

2  Ex  parte.  Barnes,  84  Ala.  540.  Hun,  242. 

3  Bell  V.  Davis,  43  Ala.  460 ;  Ross  v.  <  Ellsworth  v.  Savre,  67  la.  449 
Hannah,  18  Ala.  125;  Gresham  v.  (la.  Code,  §  3072,  as  amended  in  1882), 
Walker,  10  Ala.  370;  Zielke  v.  Mor-  distinguishing  AngeU  v.  Johnson,  51 


gan,  50  Wis.  560 ;  Russell  v.  Lennon 
39  Wis.  570 ;  Iliff  v.  Arnott,  31  Kan 
672;  Pond  v.  Kimball,  101  Mass.  105 
Buzzell  V.  Hardy.  58  N.  H.  331 
Harlan  v.  Haines,  125  Pa.  St.  48 
Bair  v.  Steinman,  52  Pa.  St.  423 
Tasker  v.  Sheldon,  115  Pa.  St.  107 


la.  625,  and  Moffitt  v.  Adams,  60  la. 
44  {compare  Rice  v.  Nolan,  33  Kan. 
28):  Wicker  v.  Comstock,  52  Wis. 
319;  Coleman's  Appeal,  103  Pa.  St. 
366. 

5  Shepherd  v.  Murrill,  90  N.  C.  208. 

6  McAbe  V.  Thompson,  27  Minn.  134. 


Bittenger's   Appeal,  76  Pa.   St.   105.  7  Harrington  v.  Smith,  14  Colo.  376. 

Compare  Howard,   etc.  v.   Railroad  « Graves  v.  Hinkle,   120  Ind.  157; 

Co.,  102  Pa.  St.  220 ;  Barton  v.  Brown,  Ind.   R.  S.  (1881),  §  2670,   relative  to 

68  Cal.  11 ;  Green  v.  Blunt,  59  la.  79;  claim  when  property  is  assigned,  etc. 


LACHt:S    AND    PASSIVE    WAIVER. 


867 


husband  liad  consented  to  its  attachment,  and  slie  had  made 
no  objection.' 

Wlien  ]iroperty  was  assigned,  and  the  assignor  had  the 
promise  of  the  assignee  to  set  off  certain  ])ersonal  property  as 
exempt,  which  the  latter  neglected  to  do;  and  when  the  as- 
signor was  absent  at  the  appraisement  on  account  of  sickness, 
he  Avas  not  held  to  have  waived.'^ 


1  Dodge  V.  Knight  (Tex.),  16  S.  W. 
626. 

'^  Dolierty  v.  Ramsey,  1  Ind.  App. 
580 ;  27  N.  E.  879.  The  court  said : 
"The  law  requires  an  assignee  to 
make  a  full  and  complete  inventory 
of  all  the  property  owned  by  the  as- 
signor within  thirtj'^  days  after  he 
enters  upon  the  execution  of  the 
trust,  and  witliin  twenty  days  after 
the  preparation  and  filing  of  such  in- 
ventory he  shall  cause  all  of  the 
property  mentioned  therein  to  be  ap- 
praised by  two  competent  appraisers. 
Section  2670,  Revised  Statutes  1881, 
provides  that,  if  the  assignor  be  a 
resident  householder  of  this  state,  the 
appraisers  shall  set  off  to  him  such 
articles  of  property  mentioned  in  the 
inventory  as  he  may  select,  not  ex- 
ceeding in  value  $300.  The  amount 
of  exemption  provided  by  this  stat- 
ute was  enlarged  by  implication  to 
$600  by  the  act  of  March  29,  1879. 
O'Neil  V.  Beck,  69  Ind.  239.  In  the 
case  of  Graves  v.  Hinkle,  120  Ind. 
157,  21  N.  E.  Rep.  328,  it  was  held 
that  an  assignor  could  avail  himself 
of  the  right  of  exemption  only  by  a 
substantial  compliance  with  the  re- 
quirements ■  of  section  2670,  supra, 
and  tliat  he  must  select  the  articles 
of  property  claimed  by  him  as  ex- 
empt from  sale  at  the  time  and  in 
the  manner  provided  in  that  section  ; 
and,  if  he  failed  to  do  so.  the  right  of 
exemption  would  be  deemed  to  have 
been  waived,  and  the  property  would 
all  constitute  a  trust  fund  for  the  ex- 
clusive- l)(>nefitof  the  creditors  until 


they  were  all  satisfied.  The  court 
said :  '  As  against  his  deed,  vvhicli 
transfers  the  title  to  the  property, 
the  assignor  can  only  claim  the  right 
of  exemption  by  pursuing  the  method 
prescribed  by  the  statute.  He  has  a 
right  to  claim  the  amount  out  of  real 
estate  or  personal  property,  or  both ; 
but,  unless  prevented  from  doing  so 
without  his  own  fault  or  neglect,  he 
must  assert  his  right  in  the  manner 
and  at  the  time  prescribed  by  the 
statute.'  In  the  case  before  us  the 
petition  states  that  the  assignor  was 
a  householder  of  this  state,  and  that 
a  few  days  before  the  appraisement 
he  demanded  of  the  assignee  that 
property  of  the  value  of  $600  be  set 
off  to  him  as  exempt  from  sale,  and 
that  he  then  and  there  designated 
and  selected  the  particular  property 
so  claimed  by  him,  and  the  assignee 
promised  to  have  the  property  so  set 
apart  at  the  time  of  the  appraise- 
ment. The  assignor  was  confined  to 
his  house  by  sickness  when  the  prop- 
erty was  appraised,  and  could  not  be 
present  to  again  assert  his  right  to 
exemption,  and  again  select  the  ar- 
ticles of  property  claimed  by  him. 
but  relied  upon  the  agreement  of  the 
assignee  to  protect  his  rights  in  the 
matter.  Tiie  law  contemplates  that 
the  appraisement  shall  be  made  un- 
der the  supervision  of  the  assignee. 
Following  the  decisions  of  the  su- 
preme court  requiring  a  liberal  con- 
struction of  the  exemption  laws  in 
favor  of  the  debtor,  we  are  of  the 
opinion  that  the  petition  shows  a  sub- 


868 


EXEMPTION    ENFORCED. 


If  the  debtor  has  made  claim  and  it  has  been  disregarded 
by  the  officer  in  charge  of  the  execution,  he  has  his  remed}-^ 
to  enforce  his  right.  And  it  has  been  held  that  if,  after  hav- 
ing claimed,  he  stand  by  and  neglect  to  resort  to  mandamus^ 
he  will  be  deemed  to  have  waived  his  right.  Or,  if  his  claim 
has  been  denied  by  a  court,  and  he  has  not  appealed,  he  is 
considered  as  having  acquiesced  in  the  judgment  and  lost  his 
exemption  right,  whether  in  homestead  or  chattels.^ 

If  a  judgment  entry  is  that  of  a  money  judgment  without 
mention  of  any  stipulation  waiving  exemption,  it  will  amount 
to  "an  abandonment  of  the  waiver  and  a  consent  to  accept  a 
common  judgment  for  money,"  it  has  been  held.^ 


stantial  compliance  with  the  statute. 
At  least,  enough  is  stated  to  rebut 
the  presumption  of  a  waiver  result- 
ing from  the  assignor's  failure  to  be 
present  and  assert  his  right  at  the 
tijiie  of  the  appraisement.  Where  the 
assignor  substantially  pursues  the 
method  prescribed  by  the  statute  in 
asserting  his  right  to  exemption,  and 
the  assignee  refuses  to  set  off  prop- 
erty to  him,  but  converts  it  into  the 
trust  fund,  the  assignor  is  equitably 
entitled  to  the  proceeds  of  the  prop- 
erty which  should  have  been  set 
apart  to  him ;  and  it  is  the  duty  of 
the  court,  on  proper  application,  to 
order  the  assignee  to  turn  such  pro- 
ceeds over  to  the  assignor.  The  i^e- 
tition  in  this  case  was  sulificient,  and 
the  relief  prayed  for  ought  to  have 
been  granted,  unless  the  answer  con- 
tained facts  sufhcient  to  defeat  the 
right  of  exemption.  It  is  insisted 
that,  because  the  assignor  transferred 
a  large  amount  of  property  to  one 
Street,  for  his  own  use,  and  to'with- 
draw  it  from  the  operation  of  the 
assignment,  he  should  not  be  allowed 
the  right  to  the  exemption  expressly 
conferred  upon  him  by  the  statute. 
It  appears  by  the  answer  that  the  as- 
signor had  given  the  assignee  an  or- 
der on  Street  for  the  money  so  trans- 
ferred to  him,  but  Street  refused  to 
pay  it  over,  and  the  assignee  had  a 


suit  then  pending  for  its  recovery. 
By  the  recording  of  the  deed  of  as- 
signment, the  legal  title  to  all  of  the 
property  owned  by  the  assignor  at 
that  time  became  vested  in  the  as- 
signee for  the  benefit  of  the  cred- 
itors, including  any  and  all  property 
that  may  have  been  sold,  conveyed 
or  assigned  by  the  assignor  with  the 
intent  to  defraud  his  creditors.  Sei- 
bert  v.  Milligan,  110  lud.  Ill,  10  N.  R 
Rep.  929.  Not  only  did  the  law  bring 
the  money  fraudulently  transferred 
by  the  assignor  into  the  trust  estate, 
but  he  executed  a  written  order  vol- 
untarily surrendering  to  the  assignee 
all  of  such  property,  so  that  it  can- 
not be  claimed  that  the  assignor 
should  receive  his  exemption  from 
that  fund.  This  beneficent  provision 
of  the  statute  can  only  be  invoked 
by  one  in  the  character  of  a  house- 
holder, and  was  designed  largely  for 
the  benefit  of  those  dependent  in  a 
measure  upon  the  debtor  for  sup- 
port   .    .    ." 

1  Chambers  v.  Perry,  47  Ark.  400 ; 
Cason  V.  Bone,  43  Ark.  17 ;  Healy  v. 
Connor,  40  Ark.  353 ;  Butt  v.  Green, 
29  O.  St.  667. 

2Agnew  V.  Walden  (Ala,),  10  So. 
224 ;  Courie  v.  Goodwin,  89  Ala.  569  ; 
Brown  v.  Leitch,  60  Ala.  313 ;  Hosea 
V.  Talbert,  65  Ala.  173. 


WAIVER   IN   PEOMISSORY    NOTES.  869 

Where  waiver  of  exemption,  in  a  lease,  is  valid,  the  person- 
alty of  the  debtor  may  be  executed,  though  the  judgment  do 
not  recite  or  note  the  waiver.' 

The  debtor  does  not  waive  by  returning  the  property  under 
a  bond  given  to  the  sheriff  for  its  redelivery.^ 

The  acceptance  of  the  oflBcer's  selection  waives  all  irregu- 
larities,^ 

§  9.  Waiver  in  Promissory  Notes. 

The  states  are  not  agreed  as  to  whether  exemption  may  be 
waived  in  a  promissory  note.  Those  holding  the  affirmative 
say  that  exemption  is  a  personal  privilege  which  may  not  only 
be  waived  when  execution  is  pending  (as  all  agree),  but  that 
it  may  be  relinquished  beforehand  in  favor  of  a  particular 
creditor,  the  payee  of  the  note.  They  say  that  this  is  part  of 
the  consideration ;  that  the  creditor  trusts  on  the  faith  of  the 
waiver,  and  therefore  the  court  should  respect  it;  and  that 
the  debtor  is  benefited  by  having  his  credit  bettered  by  de- 
barring himself  and  family  of  the  exemption  privilege.* 

The  states  holding  the  negative  appeal  to  public  policy. 
Exemption  is  something  which  concerns  not  only  the  debtor, 
but  his  family  and  the  community;  so  the  debtor  cannot 
defeat  the  purpose  of  the  legislator  by  stipulating  that  he  will 
not  avail  himself  of  the  benefit  for  himself,  his  family  and  the 
public.  He  cannot  cut  himself  off  from  his  defenses  by  pre- 
stipulations ;  and  cannot,  from  his  exemptions,  it  is  said.  These, 
or  like  reasons,  have  been  given.' 

iHoisington  V.  Huff,  34  Kan.  379;  250;    Recht    v.    Kelly,   82    lU.    147; 

Comp.  L.  (1879),  ch.  55,  §  30 ;  Greeno  v.  Phelps  v.  Phelps,  72  111.  545 ;  Green 

Barnard,  18  Kan.  518;  Frost  v.  Shaw,  v.  Watson,  75  Ga.  471 ;  S.  C.,  58  Am- 

3  O.  St.  270.  Rop.  479 ;  Stafford  v.  Elliott,  59  Ga. 

2  Desmond  v.  State,  15  Neb.  438;  837;  Curtis  v.  O'Brien,  20  la.  376; 
Neb.  Code,  §  1072.  Moxley  v.  Ragan,  10  Bush,  158 ;  Lev- 

3  State  V.  Conner,  73  Mo.  573.  icks  v.  Walker,  15  La.  An.  245 ;  Branch 

4  Case  V.  Dunmore,  23  Pa.  St.  94  v.  Tomlinson,  77  N.  C.  8 ;  Carter  v. 
Compare  Shelley's  Appeal,  36  Pa.  St  Carter,  20  Fla.  558;  S.  C,  51  Am.  R 
373,  380;  Neely  v.  Henry,  63  Ala.  261 ;  618.  A  note,  waiving  exemption^ 
Hoisington  v.  Huff,  24  Kan.  379  made  in  Georgia,  payable  in  Ala- 
(waiver  in  a  lease);  Gamble  v.  Cen-  bama,  not  usurious  in  Georgia,  is  not 
tral  R.  Co.,  80  Ga.  595  (note  payable  open  to  inquiry  respecting  its  iisu- 
in  Alabama).  riousness  in  Alabama,  by  the  debtor^ 

6  Kneetle  v.   Newcorab,  22  N.  Y.     after  judgment  upon  the  note.  Gam- 


870 


EXEMPTION    ENFOKCED. 


§  10.  Notice  —  Rank  of  Creditors,  etc. 

A  debtor,  not  notified  and  whose  whole  personal  chattels 
do  not  exceed  the  exemption  limit,  is  not  necessarily  to  be 
understood  as  having  waived  his  exemption  right  by  failing 


ble  V.  Central  R  Co.,  80  Ga.  595.  In 
the  case  of  Cleghorn  v.  Greeson,  77 
Ga.  343,  the  judgment  showed  usury 
on  its  face  by  Georgia  law.  The 
court  explained,  in  Gamble's  case, 
that  it  did  not  mean  to  rule  by  im- 
plication "  that  the  law  of  Alabama 
would  vitiate  a  waiver  of  exemption 
made  here  [in  Georgia]  in  favor  of  a 
debt  pure  by  our  law  though  paj'able 
in  that  state,  but  only  that  the  ques- 
tion cannot  be  made  after  judg- 
ment—  no  usury  appearing  on  the 
face  of  the  record,  and  none  being 
alleged  save  that  which  is  obnoxious 
to  the  foreign  law  only."  In  Ala- 
bama, the  waiver  of  all  exemptions, 
in  a  promissory  note,  will  liold  good 
as  to  chattels  but  not  as  to  realty. 
Agnew  v.  Walden  (Ala.),  10  So.  224. 
The  court  said  :  "The  claim  sued  on, 
as  described  in  tlie  complaint,  and  as 
the  testimony  tends  to  show,  con- 
tains a  waiver  of  all  exemptions  or 
relief  laws  under  the  statutes  and 
constitution  of  Alabama.  This  is  a 
good  waiver  of  exemptions  of  per- 
sonal property,  but  not  of  real  estata 
Neely  v.  Henry,  63  Ala.  261.  The 
substance  of  the  claim,  as  filed  and 
recorded  in  the  probate  court,  states 
the  date  of  the  note,  amount  when 
due,  names  of  the  payees,  and  date 
of  filing.  It  contains  no  mention  of 
the  waiver  of  exemptions.  In  Smith 
V.  Fellows,  58  Ala.  467,  we  stated 
some  of  the  reasons  which  go  to 
miake  up  the  policy  of  our  legisla- 
tion requiring  claims  against  de- 
cedents' estates  to  be  presented  or 
filed  within  eighteen  months.  Tliere 
may  be  other  reasons.  Personal  rep- 
resentatives, among  their  first  duties, 
are  required  to  set  apart  exemptions 


of  personal  property  if  there  be  a 
surviving  widow,  or  minor  child  or 
children  ;  and  it  may  be  that  to  con- 
stitute a  statement  of  the  claim  that 
will  cut  off  exemptions  the  waiver 
should  be  set  forth,  if  there  be  one. 
But  we  need  not  decide  this  question. 
The  judgment  entrj'  is  a  simple 
judgment  for  money,  and  is  silent  as 
to  the  stipulation  waiving  exemp- 
tions. This  amounts  to  an  abandon- 
ment of  the  waiver,  and  a  consent  to 
accept  a  common  judgment  for 
money.  Couri6  v.  Goodwin,  89  Ala. 
569,  8  South.  Rep.  9 ;  Brown  v.  Leitch. 
60  Ala,  313:  Hosea  v.  Talbert,  65 
Ala.  173.  Some  of  the  questions 
sought  to  be  raised  are  scarcely  pre- 
sented in  such  form  as  that  we  can 
consider  them.  Eliminating  them, 
we  find  no  error  in  the  record."  And 
a  waiver  of  homestead  exemption  in 
a  promissory  note  does  not  include 
that  of  chattel  exemption.  Reed 
Lumber  Co.  v.  Lewis  (Ala.),  10  So. 
333.  In  this  case,  the  court  said: 
"  It  is  not  claimed  in  the  complaint 
that  either  of  tlie  defendants  waived 
their  exemptions  of  personal  prop- 
ei'ty  as  against  the  notes  sued  on. 
The  averment  is  'that  in  each  of  said 
notes  defendants  waived  all  home- 
stead exemptions  as  against  this 
debt'  Manifestly,  upon  such  a  waiver, 
there  could  be  no  judgment  decla- 
ration of  a  waiver  of  exemption  of 
personalty  ;  and,  even  were  this  oth- 
erwise, the  declaration  in  this  judg- 
ment should  have  been  confined  to 
W.  T.  Farrar,  who,  it  is  alleged, 
signed  the  partnership  name  to  the 
notes.  Terrell  v.  Hurst.  76  Ala.  588. 
The  judgment  is  reversed,  and  the 
cause  remanded." 


NOTICE  —  RANK   OF   CREDITORS.  871 

to  put  in  his  claim  till  long  after  his  property  has  been  at- 
tached.' He  may  reasonably  be  supposed  to  await  notice 
from  the  seizing  officer,  where  the  giving  of  it  is  made  a  duty. 

In  the  case  cited  the  debtor's  })roperty  was  specifically  ex- 
empt in  part,  and  wholly  exem[)t  upon  claim.  The  officer 
should  have  given  him  notice  (so  that  selection  could  be  made 
between  three  horses  of  which  two  only  were  specifically  ex- 
empt), if  only  specific  exemption  had  been  involved.  The 
debtor  was  entitled  to  three  hundred  dollars'  worth  of  per- 
sonal property,  and,  as  all  that  he  owned  did  not  exceed  this 
allowance,  he  was  not  held  to  have  lost  his  right  by  his  laches} 

The  assignment  of  all  his  property  by  a  debtor  for  the  bene- 
fit of  his  creditors  does  not  affect  his  right  to  exempt  prop- 
erty retained,  though  literally  included  in  the  assignment.' 

The  creditor,  entitled  to  notice  of  the  filing  of  the  schedule 
and  claim  of  exemption,  waives  it  by  his  appearance  to  con- 
test the  claim.*  When  the  lower  court  has  refused  to  restrain 
the  sale  jf  property  claimed  as  exempt  on  the  ground  that  no 
notice  has  been  given  to  the  creditor,  and  the  debtor  applies 
tQ  the  higher  court,  if  the  creditor  meet  him  there  to  contest 
the  application  he  will  thus  waive  his  right  to  notice  of  the 
schedule.^ 

Notice  of  opposition  to  the  exemption  allotment  to  the 
debtor  must  be  given  by  him  and  served  in  such  way  as  to  ap- 
pear of  record  — -not  orally,  nor  by  maih''  This  may  not  be 
required  everywhere,  but  would  be  a  good  rule  for  general 
practice. 

Notice  by  the  debtor  to  the  judgment  creditor  that  he 
claims  exemption  in  certain  chattels  will  enable  him  to  prose- 
cute his  claim  though  the  property  may  have  been  subse. 
quently  bought  by  the  creditor  at  execution  sale.'  And  he 
may  go  on  with  his  suit,  though  he  has  changed  his  residence 
after  its  institution.^ 

Will  the  debtor's  waiver,  in  favor  of  a  creditor  whose  claim 

1  Holliday  v.  Mansker,  44  Mo.  App.  6  Allen  v.  Strickland,  100  N.  C.  225. 

465.  ■'  Gardner  v.  King,  37  Kan.  671. 

2/5.;    State  v.  Emmerson,  74  Mo.  ^McCrary   v.   Chase,   71  Ala.   540. 

607.  See  further,  as  to  contests  of  exenip- 

3  Close  V.  Sinclair,  38  O.  St.  530.  tions,  Clark  v.  Spencer.  75  Ala.  49 ; 

*  Garrett  v.  Wade,  46  Ark.  493.  Levy  v.  Moog,  69  Ala  63. 

^  Brown  v.  Doneghey,  46  Ark.  497. 


872  EXEMPTION    ENFORCED. 

(secured  by  lien)  is  less  than  the  maximum  of  exemption,  inure 
to  the  advantage  of  those  holding  liens  of  less  rank  and  debar 
the  debtor  from  having  the  balance  of  his  exemption?  That 
is  to  say  :  the  exemption  maximum  being  three  hundred  dol- 
lars, and  the  senior's  claim  two  hundred,  would  the  debtor  be 
estopped  from  claiming  one  hundred,  as  against  the  junior 
creditors,  by  reason  of  his  special  waiver? 

Answer  has  been  made  as  follows: — 

"  First  —  A  waiver  as  to  any  lien  will  inure  to  the  benefit 
of  all  prior  liens,  on  the  principle  that  the  debtor  cannot  alter 
the  precedence  settled  by  law. 

"  Secondly  —  A  waiver  as  to  any  lien  will  inure  to  the  ben- 
efit of  subsequent  liens  so  far  as  to  compel  the  waiver-creditor 
to  resort  first  to  the  exempted  fund,  on  the  principle  of  the 
equity  of  creditors  having  one  and  two  funds,  respectively, 
under  their  control. 

"  Thirdly  —  A  waiver  will  not  inure  to  the  benefit  of  sub- 
sequent liens  beyond  its  own  amount:  so  that  if  the  waiver 
judgment  is  less  than  three  hundred  dollars,  the  balance  will  go 
to  the  debtor  claiming  his  exemption ;  and  this  on  the  broad 
ground  that  men  may  do  what  they  will  with  their  own,  pro- 
vided they  do  not  contravene  the  settled  rules  of  law,  or  im- 
pair the  rights  of  others."  '  This  answer  is  the  result  of  a 
learned  discussion  of  the  question. 

An  express  general  waiver  of  exemption  from  forced  sale 
for  rent,  made  by  a  lessee  in  his  lease,  was  held  applicable  to 
any  of  his  property,  whether  seized  for  rent  or  not.^ 

A  waiver  as  to  any  lien  is  a  waiver  as  to  all  anterior  ones, 
since  otherwise  the  junior  would  be  given  a  better  place  than 
the  senior  liens.  The  principle  is  that,  the  law  having  fixed 
the  rank  of  the  respective  liens,  the  debtor  cannot  reverse  or 
alter  it.' 

§  11.  Mortgage,  Relative  to  Waiver. 

We  usually  think  of  exemption  with  reference  to  execution ; 
and  it  has  been  contended  that  when  the  debtor's  property  is 

iHallman  v.  Hallman,  124  Pa.  St.  Mitchell  v.  Coates,  47  Pa.  St  202,  dis- 

347,  and  cases  cited ;  Thomas'  Appeal,  tinguished. 

69  Pa.  St  131.  3  Miller  v.  Getz,  135  Pa  St  558 ; 

■i  Beatty  v.  Rankin,  139  Pa.  St  358.  Hallman  v.  Hallman,  124  Pa.  Rt  'Ml. 


MORTGAGE,  RELATIVE    TO   WAIVER.  873 

sold  otherwise  than  by  such  forced  sale,  as  by  mortgage  fore- 
closure, there  is  no  exemption.  But  the  opposite  rule  pre- 
vails. If  there  be  excess  after  the  satisfaction  of  a  mortgage, 
it  is  not  open  to  creditors  to  the  exclusion  of  the  exemption 
right.'  The  reason  for  protecting  the  debtor  and  his  family 
is  as  great  when  the  sale  is  by  mortgage  foreclosure  as  when 
by  writ  of  fieri  facias.  The  principle  should  be  universally 
recognized ;  at  least,  it  should  be  vf herever  the  statute  is  vir- 
tually the  same  as  that  upon  which  the  above  cited  decisions 
were  founded.^  The  literal  language  of  the  statute  may  be 
that  the  property  shall  be  exempt  from  execution,  but  the 
spirit  would  seem  to  be  that  it  shall  be  saved  to  the  debtor 
free  from  his  creditor's  claims.  The  relief  to  the  debtor  and 
his  family  is  as  much  needed  under  one  form  of  sale  as  under 
another.  If  creditors  could  redeem  the  mortgage,  and  make 
as  much  money  out  of  the  mortgaged  property  as  the  mortga- 
gee could  have  made,  and  go  on  and  apply  any  excess  of  pro- 
ceeds to  their  debts,  they  could  do  more  than  the  mortgagee 
could  have  done.  Would  any  fair  construction  of  an  exemp- 
tion statute  simply  forbidding  execution  sale  of  exempt  prop- 
erty allow  this  indirect  way  of  taking  it  from  the  debtor? 

When  a  debtor  has  mortgaged  all  his  personal  property  to 
his  creditor,  he  cannot  claim  any  portion  of  it  as  exempt  from 
foreclosure  sale,  as  he  could  in  case  of  execution  had  no  mort- 
gage been  given.^ 

A  creditor  cannot  complain  that  his  debtor  has  mortgaged 
exempt  chattels,  since  he  could  not  have  made  his  money  out 
of  them  had  they  remained  unincumbered.*     The  principle  is 

1  Darby  v.  Rouse  (Md.),  22  A.  1110 ;  3  O.  St.  270 ;  Joues  v.  Scott,  10  Kan. 
Muhr  V.  Piaover,  67  Md.  488.  Compare  33 ;  McAuley's  Appeal,  35  Pa.  St.  209 
Boulden's  Case,  57  Md.  314.  Gangwere's  Appeal,  36  Pa.  St.  466 

2  Maryland,  Act  1861,  ch.  7.     Prop-  Bowman   v.   Smiley,   7   Casey,  225 
erty  to  the  value  of  $100  shall  be  "  ex-  Love  v.  Blair,  72  Ind.   281 ;  Barnard 
empt  from  execution."  v.  Brown,  112  Ind.  53;  13  N.  E.  401. 

3  Conway  v.  Wilson,  44  N.  J.  Eq.  *  Washburn  v.  Goodheart,  88  111. 
457;  Flanders  v.  Wells,  61  Ga.195;  229;  Vaughan  v.  Thompson,  17 111.78; 
Cronan  v.  Honor,  10  Heisk.  533 ;  Mox-  Hunter  v.  Bosworth,  43  Wis.  583  (see 
ley  V.  Ragan,  10  Bush,  156;  Patterson  Anderson  v.  Patterson,  64  Wis.  557); 
v.  Taylor,  15  Fla.  336 ;  Lavillebauve  v.  Patten  v.  Smith,  4  Ct  450 ;  Collett 
Frederic,  20  La.  Ann.  374 ;  Roundy  v.  Jones,  2  B.  Mon.  19 ;  Prout  v. 
V.  Converse,  71  Wis.  524 ;  Fejavary  Vaughan,  52  Vt  451. 

V.  Broesch,  52  la.  88 ;  Frost  v.  Shaw, 


874  EXEMPTION    ENFORCED. 

the  same  whatever  the  species  of  property.^  But  if  the  value 
of  the  mortgaged  property  greatly  exceeds  the  debt  secured, 
the  good  faith  of  the  mortgagor  may  be  questioned,  and  the 
question  submitted  to  a  jury.^ 

The  right  to  mortD:ao:e  that  in  which  the  creditor  has  no 
concern  is  as  clear  as  the  right  to  sell  it;  and  the  exemptionist 
has  the  right  to  sell.^  But  the  proceeds  would  not  therefore 
be  exempt ;  *  nor  would  property  taken  by  way  of  exchange." 

If  a  debtor  has  voluntaril}^  mortgaged  his  exempt  personal 
property,  does  he  thereby  relinquish  his  exemption  claim  so 
that  the  goods  are  exposed  to  the  general  creditor?  Undoubt- 
edly there  is  relinquishment  as  to  the  mortgagee ;  but  is  there 
as  to  other  creditors?  The  authorities  say  there  is  not.  Even 
the  right  of  redemption  is  held  inviolable.®  Though  such 
mortgage  be  declared  a  general  assignment,  yet  it  is  held  that 
only  creditors  having  waiver  can  take  in  distribution.' 

It  was  held  that  a  wife  could  claim  exemption  in  the  chattels 
mortgaged  to  the  amount  of  the  statutory  limit  —  three  hun- 
dred dollars  —  when  the  mortgagor  had  no  homestead.  This 
was  held  under  statutory  construction.^  The  husband  was  es- 
topped "  but  the  wife  could  claim,  as  she  had  been  no  party 
to  the  mortgage. 

The  debtor  may  claim  exemption  in  his  unmortgaged  chat- 
tels when  they  are  levied  upon  with  others  that  he  has  mort- 

1  Weis  V.  Levy,  69  Ala.  209 ;  Courier  7  S.  E.  212 ;  Paddock  v.  Lance,  94 

V.  Sutherland,  54  N.  H.  475 ;  Bayne  Mo.  283 ;  6  S.  W.  241. 

V.  Patterson,  40  Mich.  658 ;  Muhr  v.  ■•  Harrier  v.  Fassett,  56  la.  264. 

Pinover,  66  Md.  480.  Compare  Chyn-  5  Bennett  v.  Hutson,  33  Ark.  762. 

oweth  V.  Tenney,  10  Wis.  397 ;  Single  ^  Jones  v.  Scott,  10  Kan.  33 ;  Buck- 

V.  Phelps,  20  Wis.  398;    Case  v.  Fish,  ley  v.  Wheeler,  52  Mich.  1 ;  Mandlove 

58  Wis.  56.  V.    Burton,  1  Ind.  39 ;  McGivney  v. 


^Ganong  v.  Green,  71  Mich.  1 
Olmstead  v.  Mattison,  45  Mich.  617 
Allen    V.    Kinyon,    41     Mich.    281 


Childs,  41  Hun,  607.  See  Wilson  v. 
Joseph,  107  Ind.  490 ;  Zelnicker  v. 
Brigham,  74  Ala.  598 ;  Collet  v.  Jones, 


Loomis  V.  Smith,  37  Mich.  595.     See  2  B.   Mon,   19,  and  7   B.  Mon.  586 ; 

Stewart  v.  Brown,  48  Mich.  383.  Slaughter  v.    Detiney,    15    Ind.   49 ; 

3  Buckley  v.  Wheeler,  52  Mich.  1 ;  State  v.  Carroll,  24  Mo.  App.  358. 

Washburn  v.  Goodheart,  88  111.  229;  'Collier  v.  Wood  Brothers,  85  Ala. 

Crouan  v.  Honor,  10  Heisk.  353 ;  Ku-  91. 

lage  V.   Schueler,  7   Mo.   App.   250 ;  «  Colvvell  v.  Carper.  15  O.  St  279. 

Taylor  v.  Rice  (N.  D.),  44  N.  W.  1017;  ^  lb.;  Frost  v.  Shaw,  3  O.  St  270. 

Gardner  v.  King.  37  Kan.  671 ;  15  P.  See  Slanker  v.  Beardsley,  9  O.  St  589. 
920 ;  Robson  v.  Rawlins,  79  Ga.  354 ; 


MORTGAGE,  RELATIVE    TO    WAIVER.  875 

gaged,  and  he  may  select  an  exempt  article  before  seizure  and 
leave  the  officer  only  a  mortgaged  one  to  proceed  against, 
where  the  officer  has  been  notified  by  record  or  otherwise.' 

"When  the  debtor  has  mortgaged  chattels,  part  of  which  are 
specifically  exempt,  he  may  have  the  non-exempt  portion  first 
exhausted  at  the  foreclosure  sale,  if  he  claim  this  privilege. 
The  mortgagee  is  not  bound  to  sell  in  this  order,  in  the  ab- 
sence of  the  claim.  And  the  interposition  of  the  debtor  must 
be  timely.  He  cannot  stand  by  until  his  wheat  has  been 
threshed  by  the  sheriff,  and  then  demand  that,  as  it  is  exempt, 
other  property  must  be  first  exhausted.'-  The  general  rule  as 
to  the  exhaustion  of  the  one  of  two  funds  which  will  leave 
the  other  to  junior  mortgagees  is  well  estabhshed ;  ='  and  it 
has  been  applied  when  exempt  and  non-exempt  property  were 
both  liable.* 

Mortgaged  chattels,  remaining  in  the  possession  of  the 
mortgagor,  may  be  claimed  by  him  under  the  exemption  pro- 
vided b}'^  statute,  if  they  are  exempt;  but  the  mortgagee  can- 
not claim  them  and  save  them  from  execution,  where  he  is 
held  to  have  no  interest.^ 

In  some  states  a  chattel  mortgage  does  not  imply  a  w^aiver 
of  exemption  —  only  express  waiver  will  hold  good.^  Whether 
the  waiver  is  with  reference  to  a  part  or  the  whole  of  the  prop- 
erty exempted  by  law  should  be  specified  in  the  instrument, 
though  the  chattels  need  not  be  designated  when  the  waiver 
covers  the  whole.''  Such  waiver,  unlike  that  respecting  home- 
stead, does  not  need  the  wife's  signature  to  make  it  valid.^ 

1  Greenleaf  v.  Sanborn,  44  N.  H.  ing  judgment  creditors,"  from   the 

16 ;    McCoy    v.    Dail,    6    Bax.    137 ;  proceeds  of  his  ju-operty  sold  for  debt 

Tryon  v.  Mansir,  2  Allen,  319;  Bald-  Darby  v.  Rouse  (Md.),  22  A.  1110;  Md. 

win  Y.  Talbot,  43  Mich.  11.  Act.  of  1861,  ch.  7.  Compare  Muhr  v. 

'■2  Miller  v.  McCarty,  47  Minn.  321 ;  Pinover,  67  Md.  488,  and  Boulden's 

50  N.  W.  235.  Case,  57  Md.  314. 

3  Searle  v.  Chapman,  121  Mass.  19 ;  6  Knox  v,  Wilson,  77  Ala.  309 ;  Ala. 

Hallman  v.  Hallman,  124  Pa.  St.  347.  Code,  1876,  §  2848. 

«  McLaughlin  v.  Hart,  46  Cal.  638 ;  ^  Neely  v.  Henry,  63  Ala.  261. 
Armitage  v.  Toll,  64  Mich.  412;  Wil-  ^Ib.     In    this  case,  waiver  of  ex- 
son  V.  Patton,  87  N.  C.  318.    See  Hor-  emption,  made  in  a  promissory  note, 
ton  V.  Kelly,  40  Minn.  193.  was  recognized ;  so  also  in  Brown  v. 

sSherrible  v.  Chaffee  (R.  I.),  21  A.  Leitch,  60  Ala  313;  Bibb  v.  Janney, 

103.     In    Maryland,    $100    may    be  45  Ala.  329. 
claimed  by  a  debtor  "  as  against  exist- 


CHAPTER  XXVIII. 


EXEMPTING  ATTACHED  CHATTELS. 


1.  Claiming  before  Judgment 

2.  Attachment  and  Execution  Dif- 

ferent as  to  Claiming. 

3.  Effect   of  Judgment  upon    At- 

tachment. 
4  Conventional  Waiver. 

5.  Sale  Pendente  Lite. 

6.  Garnishment  in  Foreign  Juris- 

diction. 


§  7.  Garnishment  and  State  Comity. 

8.  Garnishee's  Disclosure  in   For- 

eign Jurisdiction. 

9.  Railroad  Company  Garnishee  — 

Disclosure. 
10.  Non-residents,  as  to  Chattel  Ex- 
emption. 


§  1.  Claiming  before  Judgment. 

The  service  of  the  attachment  process  is  usually  prompt 
and  often  hurried,  especially  when  there  are  competing  credit- 
ors each  trying  to  get  the  first  lien,  and  when  the  chattels  of 
the  debtor  are  likely  to  be  concealed  or  spirited  away  by  him 
if  he  be  not  prevented  by  the  timely  action  of  the  officer  in 
charge  of  the  writ.  Under  such  circumstances,  it  is  some- 
times impracticable  to  give  the  debtor  the  opportunity  of  se- 
lecting his  exempt  portion  before  the  seizure  of  his  goods. 
He  should  have  notice,  however,  as  soon  as  possible,  so  that 
he  may  select  and  claim  the  articles  which  he  is  entitled  to 
keep,  and  so  that  the  officer  may  take  additional  property 
to  supply  the  deficiency  created  by  the  release  of  things  spe- 
cifically exempt;  for,  by  virtue  of  the  writ,  he  could  seize 
no  more  than  what  was  needed  to  satisfy  the  debt  and  costs, 
in  the  first  instance.  If  he  has  secured  ten  horses,  and  the 
debtor  is  entitled  to  select  one  and  exercises  his  right,  the 
officer  may  then  release  that  one  and  attach  another,  or  some 
other  property  in  its  place.  The  exemption  being  specific,  the 
release  may  be  made  without  order  of  court,  at  this  first  stage 
of  the  proceeding,  before  the  return  is  made. 

Claiming,  whether  of  the  officer  or  of  the  court,  is  usually 
by  the  debtor  himself,  but  under  some  circumstances  other 
beneficiaries   may  claim.     For,  though  only  he  can  defend 


CLAIMING    BEFORE   JUDGMENT.  877 

against  the  main  suit,  others  may  have  such  interest  in  the 
exemptions  that  they  may  apply  for  the  release  of  such  arti- 
cles as  the  law  secures  to  families.  When  the  debtor  has  ab- 
sconded, he  may  have  forfeited  his  {)rivilege  as  to  exemption,' 
yet  if  it  is  for  family  benefit,  his  wife  may  claim  it,'^  though  she 
cannot  defend  the  suit  to  recover  tlie  debt.  If  non-residuncy 
is  the  ground  of  the  attachment,  or  rather  if  the  debtor  be  a 
non-resident  and  therefore  not  entitled  to  exemption,  it  is  hel  1 
that  the  attaching  officer  cannot  release  any  property  to  the 
wife  without  rendering  himself  liable  on  his  bond.^ 

Where  the  absentee  has  not  forfeited  his  ricrht  to  claim,  not 
only  his  wife  but  a  son  or  daughter  of  propsr  age  may  inter- 
pose to  save  the  exemption,  without  any  power  of  attorney 
or  other  authorization,  oral  or  written.  It  has  been  said  ju- 
dicially :  "  The  domestic  attachment  act  provides  for  the 
exemption,  although  the  debtor  has  absconded  with  purpose 
to  defraud  his  creditors,  evidently  requiring  no  authority 
from  the  husband.  The  act,  allowing  the  widow  of  a  decedent 
to  retam,  directs  that  the  property  remain  for  the  use  of  the 
widow  and  children.  Considering  the  act  in  question  by  these, 
in  pari  materia,  we  are  of  opinion  that  the  authority  of  the 
daughter  to  make  the  demand  was  clearly  implied  by  law." 
This  (a  part  of  a  charge  to  a  jury  by  the  trial  court)  was  ap- 
proved on  appeal.* 

Although  the  debtor  may  always  exercise  the  right  of  de- 
fense to  a  suit  brought  against  himself  or  his  property,  he 
has  been  denied  his  claim  of  exemption  in  attachment  cases 
when  he  had  permanently  removed  from  the  state,^  or  was 
about  to  do  so.^  But  the  laws  of  a  state  may  allow  a  foreign 
defendant  to  claim  his  attached  wages,  or  other  personalty, 
to  the  amount  of  the  exemption."  And,  though  exercising  his 
undoubted  right  to  defend  the  main  suit,  and  also  his  equal 
right  to  oppose  the  attachment  on  any  legal  grounds,  the 

^  Ante,  p.  765.  claimed  was  a  minor.     Even  when 

2Malvin  v.  Christoph,  54  la.   562;  the  father  was  not  absent,  an  adult 

Griffith  V.  Bailey,  79  Mo.  472.  daughter,  who  lived  with  him,  was 

3  State  V.  Chaney,  36  Mo.  App.  513.  allowed  to  claim.     Ilalbe's  Estate,  9 

Compare  Fish  v.  Street,  27  Kan.  270.  Pa.  Co.  Ct.  512.  See  ante,  pp.  655,  773. 
See  Barker  v.  Ellis,  68  Miss.  172.  5  McHugh  v.  Curtis,  48  Mich.  262. 

*  Wilson  V.  McElroy,  32  Pa.  St.  82.  6  Stein  v.  Burnett,  43  Mo.  App.  477. 
It  appears  that  the  daughter  who        "  Menzie  v.  Kelly,  8  111.  App.  259. 


87S  EXEMPTING    ATTACHED    CHATTELS. 

debtor  cannot  claim  exemption  awarded  to  her/Is  of  families 
when  he  has  no  family.^ 

The  debtor  himself  has  no  right  to  claim  the  exemption  of 
things  which  he  did  not  own  or  lawfully  possess  at  the  date 
of  the  attachment  when  the  lien  was  created  hypothetically : 
just  as  in  an  ordinary  case  he  must  have  his  right  of  exemp- 
tion, when  the  judgment  lien  attaches  generally,  to  enable 
him  to  hold  his  exempt  chattels  as  not  affected  by  it.'^  If  his 
possessory  right  existed  at  the  date  of  the  attachment,  he 
may  claim  it;  as  to  the  extent  of  the  exemption,  the  law  ex- 
isting' when  the  debt  was  created  must  govern.''  If  he  has 
mortgaged  his  chattels  he  is  yet  the  proper  claimant  of  ex- 
emption, rather  than  the  mortgagee,  in  a  suit  against  him- 
self.-" 

The  notified  debtor  may  claim  of  the  officer,*  before  the  re- 
turn, or  of  the  court  when  the  officer  does  not  release  the 
claimed  ])roperty  on  demand,  Tnere  is  no  sacramental  form.^ 
He  is  required  to  file  an  inventory  or  schedule,  in  some  states, 
that  it  may  be  seen  what  exemption  should  be  awarded  him.' 
In  others  he  files  a  declaration  of  exemption;  and  it  is  held 
that  when  he  has  done  that,  and  the  plaintiff  has  made  affi- 
davit and  given  bond  for  a  contest,  but  has  not  notified  the 
defendant  in  writing,  the  latter  is  not  bound  to  join  in  the  con- 
test.^    When  contest  is  joined,  the  jury  should  find  the  facts 

1  Murdock  v.  Dalby,  13  Mo.  App.  41.  claimant  need  not  be  a  housekeeper 

But  he  may  be  a  proper  claimant  of  but  must  be  the  head  of  a  family, 

exemption  dependent  upon  his  fam-  Astley  v.  Capron,  89  Ind.  167. 

ily  headship,  when  his  wife  and  chil-  2  Berry  v.  Nichols,  96  Ind.  287. 

dren  are  absent  from  the  state.  State  »  Todd  v.  McCravey,  77  Ala.  468; 

V.  Finn,  8  Mo.  App.  261.     And  when  Bell  v.  Hall,  76  Ala,  546 ;  Keel  v.  Lar- 

he  is  a  housekeepei",  with  a  sister  liv-  kin,  72  Ala.  493  ;  Moore  v.  Boozier,  42 

ing  with  him,  though  he  be  an  un-  Ark.  385.    See  Ellis  v.  Barnett,  65  Ga. 

married  man.     Kelly  v.  McFadden,  350 ;  Nowlaud  v.  Lanagan,  45  Ark. 

>^0  Ind.  536 ;  Bell  v.  Keach,  80  Ky.  42 ;  108;  ante,  p.  766. 

Duncan  v.  Frank,  8  Mo.  App.  286.    A  *  Sherrible  v.  Chaffee  (R.  I.),  21  A. 

woman  may  claim  under  similar  cir-  103. 

cumstances.     Arnold    v.   Waltz,    53  •''  Wilcox  v.  Howe,  59  Hun,  268. 

la.  706.     And  when  a  widower  and  ^  Bassett  v.  Inman,  7  Colo.  270. 

his    daughter    had    another   family  7  Jq  Nebraska  the  inventory  may 

to  keep  house  for  them,  he  was  con-  be  filed  either  in  court  or  with  the 

sidered  entitled  to  claim.     Bunnell  v.  officer.     State  v.  Carson,  27  Neb.  .501. 

Hay,  73  Ind.  452 ;  Lowry  v.  McAllis-  «  Bledsoe  v.  Gary  (Ala.),  10  So.  502  ; 

ter,  86  Ind.  543.    It  was  held  that  a  Hutcheson   v.  Powell,  92   Ala.   619 ; 


CLAIMING    BEFORE   JUDGMENT.  879 

bringing  the  claimed  property  under  the  exemption  law,  or 
otherwise;  they  should  not  merely  decide  that  it  is  exempt 
under  the  law  when  they  are  impaneled  to  pass  upon  the 
facts.' 

Though  chattels  are  not  attachable  if  exempt,  yet  evidence 
may  be  received  on  the  question,  duly  raised,  whether  they 
are  exempt  -  Though  wages,  within  the  monetary  or  time 
limits  fixed  by  statute,  are  not  attachable,  the  excess  is ;  and, 
on  proof  of  excess  and  its  amount,  in  an  attachment  case,  the 
writ  will  hold  good  as  to  that/' 

A  schedule  of  personal  property  must  have  the  articles  speci- 
fied —  not  generally  stated  as  "  household  furniture,"  for  in- 
stance ■*  —  since  otherwise  it  would  not  appear  upon  its  face 
how  the  household  is  composed;  and  appraisers  could  not  so 
easily  estimate  the  several  values.  If  excess  be  claimed  by 
the  debtor  when  pleading  exemption  against  attachment,  the 
other  party  could  more  easily  expose  the  wrong  by  having  a 
detailed  schedule  before  him. 

The  onus  is  on  the  claimant  of  exemption  to  prove  that  the 
property  is  exempt  —  not  merely  that  it  is  of  the  kind  which 
the  law  exempts.^     If  the  exemption  claim,  made  to  the  offi- 

Fears  v.  Thompson,  82  Ala.  294 ;  Ala.  the  law  of  the  state  of  the  contract 
Code,  g  3520.  When  personal  prop-  Roch  v.  R.  I.  Ins.  Co.,  2  111.  App.  360. 
erty  of  the  debtor  is  attached  in  third  Money  received  by  the  beneficiary  of 
hands  by  garnishment,  and  he  claims  a  benevolent  society  was  held  not 
it  as  exempt,  he  must  file  his  claim  exempt  by  New  York  statute.  Acts 
and  schedule ;  but  if  the  property  of  1879,  ch.  189 ;  Bolt  v.  Keyhoe,  30 
thus  attached  is  money  it  need  not  Hun,  619.  Further  as  to  distinction 
be  included  in  the  schedule.  If  not  between  tangible  property  and  money 
money,  there  would  yet  seem  to  be  or  choses  in  action,  in  cases  of  gar- 
no  need  of  including  it.  Decatur  nishment,  see  Todd  v.  McCravey,  77 
Mercantile  Co.  v.  Defonl,  93  Ala.  347  ;  Ala.  468. 

Ala.  Code,  ^  2533.    It  was  held  in  Illi-  •  Paulson  v.  Nunan  (Cal.),  30  P.  845 

nois  that  there  was  no  exemption  of  (following  same  case,  54  Cal.  123) ; 

money  in  bank,  when  reached  by  at-  Code  Civ.  Proc,  §  690  (6). 

tachment    or    garnishment,   by   the  2  George  v.  Fellows,  60  N.  H.  398. 

statute   governing  the   case  at  bar.  See  Adams  v.  Bushey,  60  N.  H.  290. 

Nichols  V.  Goodheart,  5  111.  App.  574.  '^  First  N.  Bank  v.  Weckler,  52  Md. 

But  when  governed  by  another  stat-  30,  j^. 

ute,  money  in   the  hands  of  a  gar-  ^Friedman  v.  Sullivan,  48  Ark.  213. 

nishee    in    Illinois   was    held   to  be  5  Rollins    v.   Allison,   59    Vt    188; 

rightly  attached,  though  exempt  by  Bourne  v.  Merritt,  22  Vt  429. 


880  EXEMtTING    ArrACHED    OHATfELS. 

cer,  is  unfounded,  he  may  disregard  it  and  go  on  to  attach, 
with  impunity.^ 

§  2.  Attachment  and  Execution  Different  a»s  to  Claim- 
ing. 

Whatever  is  exempt  from  levy  in  an  ordinary  suit  is  also 
exempt  from  attachment.  The  right  of  claiming  the  statu- 
tory benefit  does  not  depend  at  all  upon  the  character  of  the 
writ  —  whether  that  of  attachment  ov  fieri  facias.  The  time 
of  claiming  is  not  the  same  under  both  processes,  as  will  pres- 
ently be  shown ;  but  the  right,  properly  claimed,  belongs  to 
the  debtor  under  either.^ 

Many  states  allow  claim  ing  at  any  time  before  sale  in  or- 
dinary cases.  The  judgment  lien  may  be  considered  as  sub- 
ject to  the  exemption.  Chattels  are  not  dedicated  like  home- 
steads: so  the  court  cannot  know  what  particular  chattels  the 
debtor  will  select,  and  therefore  cannot  expressly  except  them 
from  the  operation  of  the  judgment  lien.  And  the  sheriff, 
making  the  levy  before  selection,  cannot  then  know  what  to 
let  alone. 

In  an  ordinary  personal  suit  the  claim  may  be  filed  in  the 
record  before  levy,  or  lodged  with  the  officer  afterwards, 
but  prior  to  sale.^  The  lieu  created  by  the  levy  is  not  im- 
paired by  the  claim  ;  ^  it  holds  good  as  to  the  liable  property. 
If  all  the  property  which  the  debtor  possesses  is  within  the 
exemption  limit,  there  is  no  need  for  selection ;  and  the  officer 
must  know  that  it  is  all  exempt  in  the  absence  of  any  claim."^ 
The  question  of  exemption  is  sometimes  raised  on  the  trial  of 
a  cause,  as  when  the  privilege  is  claimed  by  answer  in  chan- 
cery.** A  claim  and  affidavit  made  after  judgment,  in  an  or- 
dinary' suit,  ought  to  show  when  the  debt  (adjudicated  upon) 

'  Bryan  v.  Kelly,  85  Ala  5C9.  45  Cal.   161 ;  Savery  v.  Browning,  18 

2  Anderson  v.  Odell,  51  Mich.  492 ;  la.  246 ;  Fanning  v.  First  N.  Bank,  76 

Church   V.    Holconib,   45   Mich.    41 ;  111.  53.     Covipare  Illinois  Glass  Co.  v. 

Williamson   v.  Harris,   57   Ala.    40 ;  Holman,  19  111.  App.  30. 

Staniels  v.  Raymond,  4   Cush.  314;  3  Wright  v.  Grabfelder,  74  Ala.  460 ; 

Davenport  v.  Swan,  9  Humph.  186 ;  Totten  v.  Sale,  72  Ala.  488 ;  Shepherd 

Wilson  V.  Paulson,  57  Ga.  596 ;  Sap-  v.  Murrill,  90  N.  C.  208 ;  ante,  p.  177. 

pington  V.  Oeschli,  49  Mo.  244 ;  Has-  ^  Sims  v.  Eslava,  74  Ala.  594. 

tie   V.   Kelly,  57   Vt.   293 ;    Clark   v.  5  Alley  v.  Daniel,  75  Ala.  403. 

Averill,  31   Vt.   512;   Wintertield  v.  ''Zelnicker    v.    Brigham,   74    Ala. 

Railroad,  29  Wis.  589 ;  Plant  v.  Smy  the,  598. 


ATTACHMENT,  ETC.,  DII-FEKKNT    AS    TO    CLAIMING.  881 

was  contracted,  so  that  it  may  appear  whether  the  existing 
statute  or  a  former  one  is  to  control  the  question  of  exemp- 
tion.^ However,  the  burden  of  showing  this  will  rest  on  the 
plaintiff  under  some  circumstances. 

If  no  claim  be  interposed  at  any  stage,  the  plaintiff,  the  of- 
ficer and  the  court  cannot  know,  in  the  absence  of  specific  ex- 
emption, whether  the  debtor  wants  to  exercise  his  privilege  or 
not;  whether  he  prefers  to  withhold  a  part  of  his  property  or 
to  let  it  all  go  to  pay  his  debts.  He  certain^  may  forego  his 
privilege;  and  he  mny  withdraw  his  claim  after  having  made 
it.'^  So  it  cannot  be  said  that  a  writ  of  execution  is  inopera- 
tive because  there  is  a  law  authorizing  the  allowance  of  ex- 
emption to  the  debtor  if  he  claim  it.'*  In  the  absence  of  a 
claim  and  selection  after  the  debtor  has  been  duly  notified, 
the  officer  may  go  on  and  sell.'* 

The  lien  of  a  judgment  rendered  with  privilege  upon  the 
thing  attached  is  quite  different  from  that  just  considered. 
A  definite  piece  of  property  is  attached  before  judgment  un- 
der a  writ  duly  issued  upon  sworn  preliminary  showing,  and 
it  is  taken  from  the  possession  of  the  alleged  debtor,  and  he 
knows  then  that  he  has  the  right  of  claiming  it  as  exempt, 
lie  ought  to  do  so  then;  certainly  he  ought  to  do  so  before 
the  inchoate  lien  (brought  to  precarious  life  by  the  attach- 
ment) has  matured  into  a  complete,  specific  lien,  equal  to  a 
mortgage,  by  virtue  of  the  judgment.  At  least,  before  the 
rendition  of  the  judgment  he  should  manifest  his  mind  and 
legally  prefer  his  claim,  if  he  does  not  do  so  at  once,  upon 
first  knowledge  of  the  attachment.  If  he  relies  upon  exemp- 
tion, he  may  })lead  it  in  his  answer;  he  should  make  his  appli- 
cation in  some  form  before  the  attachment  lien  has  become 
specific  and  become  irretrievably  fastened  upon  the  thing  at- 
tached.    The  officer  cannot  release  after  his  return. 

1  Randolph  v.  Little,  62  Ala.  397.  Williford,  36  Ark.  155),  though  the 

2  White  Deer  Overseer's  Appeal,  95  bond  be  to  the  state.  76.  If  the  debtor 
Pa.  St.  191  (claim  withdrawn  by  a  has  obtained  possession  froni  the  of- 
pauper).  ficer  by  giving  a  delivery  bond,  he  is 

3  In  Arkansas,  exemption  does  not  not  thereby  precluded  from  claiming 
apply  when  there  is  judgment  in  exemption.  Jacks  v.  Bigluim,  3G  Ark. 
replevin.  Smith  v.  Ragsdale,  86  Ark.  481 ;  Desmond  v.  State,  15  Neb.  43a 
297.  But  it  is  applicable  against  exe-  ^  Wright  v.  Deyoe,  86  111.  490; 
cution    on    a    bail-bond    (State     v.  Zielke  v.  Morgan,  50  Wis.  560. 

56 


882  EXEMPTING    ATTACHED    CHATTELS. 

§  3.  Effect  of  Jiulgmeiit  upon  Attachment. 

It  is  held  that  it  is  too  late  to  claim  exemption  in  attached 
property  after  judgment  has  perfected  the  contingent  lien 
created  by  the  act  of  attachmg;  for  then  the  debt  sued  on 
has  become  a  debt  of  the  property  itself.  While  the  case  is 
pending,  the  writ  may  be  quashed  so  far  as  it  bears  on  ex- 
empt property,  but  after  judgment  the  right  to  claim  is 
waived.^ 

If  the  attachment  defendant  can  remain  passive,  make  no 
attempt  to  dissolve  the  attachment  in  limAne  litis,  make  no 
defense  to  the  suit,  allow  the  inchoate  lien  (created  by  the  act 
of  attaching)  to  mature,  and  then  defeat  the  whole  proceed- 
ing by  claiming  exemption,  he  can  put  the  attaching  creditor 
in  a  worse  position  than  an  ordinary  one  would  occupy.  For, 
having  attached  sufficient  property  to  satisfy  his  demand,  the 
creditor  can  take  no  more  while  that  is  held,  and  the  debtor 
is  free  to  dispose  of  whatever  else  he  has.  All  the  unat- 
tached may  be  spirited  away  out  of  the  reach  of  process 
while  the  case  is  pending.  When  it  becomes  impossible  to 
find  other  property  to  attach,  the  creditor  learns  that  he  has 
gathered  apples  of  Sodom.  On  the  other  hand,  the  ordinary 
creditor  obtams  a  general  judgment,  and  he  is  not  hurt  by 
the  debtor's  selection  of  one  article,  for  he  may  immediately 
pounce  upon  another.  Such  result  of  the  extraordinary 
remedy,  granted  when  the  ordinary  is  inadequate  by  the  pre- 
liminary showing  of  the  attaching  creditor,  would  be  itself 
extraordinary  —  not  to  say  absurd. 

1  Richardson  v.  Adler.  46  Ark.  43;  St.  489;  Blair  v.  Steinman,  52  Pa.  St. 

Turner  v.    Vaughau,  33    Ark.   454;  423;    Strouse  v.  Becker,  44  Pa.  St. 

Grubbs  v.  Ellison,  23  Ark.  287;  Per-  206;  Gay  v.  Southworth,  113  Mass. 

kins  V.  Bragg,  29  Ind.  507;  Kelly  v.  38  [compare  Copp  v.  Williams,    135 

Dill,  23  Minn.  435;  Barton  v.  Brown,  Mass.  401,  and  Savage  v.  Davis,  134 

68  Cal.  11 ;  Keybers  v.  McUomber,  67  Mass.   401);  Drake  on   Att,   §  244a; 

Cal.  395;  Wilcox  v.  Howe,  59  Hun,  Waples  on  Att.  and  Gar.,  pp.  164-7; 

268;   Russell  v.  Dean,  30  Hun,  242;  ante,   eh.    X,   §    7.     "Whether    the 

Twaddle  v.    Rogers,   14    Phila.  163 ;  property  attached  is  subject  to  exe- 

Colson  v.  Wilson,  58  Me.  416;  Smith  cution  is  res  adjudicata  after  judg- 

V.  Chad  wick,  51   Me.  515;  Barney  v.  ment  in  attachment.     The  judgment 

Keniston,  58   N.   H.  168;  Buzzell  v.  against  the  property  is  a  judgment 

Hardy,    58  N.  H.    331;    Howard    v.  in  rem,   and  is  as  conclusive  as   a 

Farr,  18  N.  H.  457;  Boui-ne  v.  Mer-  judgment  against  the  person."    Haas 

ritt,  23  Vt.  429 ;  Clapp  v.  Thomas,  5  v.  Shaw,  91  Ind.  384;  State  v.  Manly, 

Allen,  158 ;  Morris  v.  Shafer,  93  Pa.  15  Ind.  8. 


EFFECT    OF    JUDGMENT    Ul'ON    ATTACHMENT.  883 

It  has  been  held  that  exempt  community  property,  seized 
under  a  writ  of  attackment,  was  subjected  to  a  valid  lien 
upon  being  prosecuted  to  judgment;  that  the  consent  of  the 
husband  and  the  silence  of  the  wife  waived  the  exemption 
right.  Tiiere  was  discussion,  in  the  case  so  holding,  whether 
the  chattels  attached  were  really  exempt  under  the  statute; 
but  the  court  said  that  if  it  had  appeared  that  they  were  ex- 
empt, the  facts  show  that  the  defendant  consented  to  the 
seizure  and  "  waived  the  benefit  of  the  exemption,  and  he 
cannot,  under  such  facts,  he  heard  to  complain."  ^ 

The  debtor  must  claim  iiolien  and  as  the  law  requires,  if  he 
would  avail  himself  of  his  exemption  privilege.^  The  privi- 
lege is  personal  and  depends  upon  its  being  claimed.^  If  the 
debtor  fails  to  select  specific  chattels,  he  cannot  have  any  of 
the  proceeds  of  the  attachment  sale.* 

The  garnishee's  statement  that  the  defendant  claims  is  not 
sufficient.*  Nor  will  it  avail  the  defendant  to  say,  or  have  the 
garnishee  say  for  him,  that  the  property  or  credit  could  have 
been  claimed  as  exempt.**  He  must  actually  claim  before  the 
property  or  credit  is  condemned  in  the  hands  of  the  gai*- 
nishee.^  The  defendant  does  not  lose  his  right  of  exemption 
by  garnishment  proceedings  when  he  has  had  no  notice.** 
And  it  has  been  said  that,  if  not  notified  before,  he  may  claim 
when  he  has  notice  of  the  sale ;  ^  but  if  there  has  been  judg- 
ment rendered  without  service  upon  him,  or  notice  to  him, 
the  whole  proceeding  is  a  nullity. 

The  complainant,  in  a  suit  upon  a  promissory  note,  alleged 
that  the  note  waived  exemption.  There  was  judgment  with- 
out recognition  of  the  waiver.  Garnishment  proceeding,  in 
aid  of  execution,  followed  the  judgment.  The  garnishee  set  up 
the  exemption  of  defendant's  wages  while  admitting  his  own 

1  Dodge  V.  Knight  (Tex.),  16  S.  W.  6  Conley  v.  Chilcote,  25  Ohio  St  320. 

626.  Comjmre  Jewett   v.   Guyer,   38   Vt. 

2Baesker  v.   Picket,  81   Ind.   554.  209,  218. 

Compare  Campbell  V.  Gould,  17  Ind.  'Todd  v.  McCravey,  77  Ala.  468; 

133.  See  Winter  v.  Simpson,  42  Ark,  410. 

SLongley  v.  Daly  (S.  D.),  46  N.  W,  8  Mace  v.  Heath  (Neb.),  51  N,  W. 

247 ;  Com  p.  Laws,  §  5126.  317. 

*  Surra tt  v.  Young,  55  Ark.  447;  18  « Howard  Ass'n  v.  Reading  R  Co.. 

S.  W.  539.  102  Pa.  St.  220. 

»Courie  v.  Goodwin,  89  Ala.  5G9. 


884  EXEMPTING    ArrACriED    CHATTELS. 

indebtedness  to  the  defendant.  The  court  said  the  claim 
could  be  made  only  by  the  defendant  himself.' 

When  mitde  by  the  defendant  himself,  to  save  what  he  has 
in  the  hands  of  garnishees  who  have  answered  and  admitted, 
the  plaintiff  may  contest  the  claim  and  inventory.  In  one 
case  the  plaintiff  showed  that  the  defendant  had  had  a  large 
bank  account  two  years  and  a  half  h'fore  the  attachment. 
The  court  thus  reasoned  when  allowing  the  evidence:  "  There 
was  no  presumption  of  law  that  a  large  sum  of  money,  on  de- 
posit in  a  bank,  had  been  spent  without  acquiring  a  qiud  pro 
qtvo  for  it  in  return,  by  reason  of  this  lapse  of  time,  nor  that 
whatever  m.ay  have  been  thus  acquired  had  been  consumed 
in  its  using.  These  facts,  if  true,  should  have  been  proved  by 
affirmative  testimony."  "•^  How  far  back  may  one  go,  when 
showing  what  a  dependant  once  had,  to  throw  upon  him  the 
burden  of  explaining  what  he  has  done  with  his  money? 

The  personal  property  of  a  debtor  having  been  attached, 
and  having  been  held  till  judgment  and  then  advertised  for 
sale,  the  debtor  sued  out  a  writ  of  mandamus  against  the 
sheriff  commanding  him  to  have  the  property  appraised  and 
.to  set  off  five  hundred  dollars'  worth  of  it  (the  maximum  ex- 
emption) to  the  relator,  in  lieu  of  homestead,  since  he  had 
no  realty. 

The  relator  was  the  head  of  a  family,  and  the  exemption 
w^as  accorded  to  him,  now  after  the  contingent  lien  created 
by  attaching  had  been  made  certain  and  perfect  by  judgment. 
It  appears  that  the  debtor  filed  an  inventory  which  the  officer 
would  not  notice,  doubtless  thinking  it  had  come  too  late 
after  judgment  in  an  attachment  suit.  The  sheriff  pleaded,  as 
respondent  to  the  mandamus  proceeding,  that  the  debtor  was 
estopped  by  laches  and  by  his  consent  to  the  judgment. 

The  court  held  that  the  debtor  was  in  time ;  that  he  could 
claim  at  any  date  before  the  sale,^  contrary  to  cases  above. 

iCourie  v.  Goodwin,  89  Ala.  569;  Welton,   21   Neb.   541;  Hamilton  v. 

Ala.  Code,  g  2512,  exempting  |25  per  Fleming,  26   Neb.  240,  substantially 

month  wages.     How  waiver  is  to  be  overruling  State  v.  Sanford,  12  Neb. 

pleaded  by  plaintiff.    Golden  v.  Con-  425,  and  State  v,  Krumpus,  13  Neb. 

ner,  89  Ala.  598.  321    (.see    Kahoon    v.    Krumpus,    13 

^  Davis  V.  Hays,  89  Ala.  563.  Neb.  266);  State  v.  Wilson  (Neb.),  48 

^  Stevens  v.  Carson,   27    Neb.    501  N.  W.  147.     A  debtor  was  allowed  to 

(Neb.   Civ,   Code,   §   522) ;    Mann   v.  claim  his  stock  in  trade  on  the  morn- 


CONVENTIONAL    WAIVER.  885 

§  4.  Conventional  Waiver. 

A  general  renunciation  of  the  benefit  of  all  exemption  laws 
is  against  public  policy.  If  made  in  a  promissory  note,  it  will 
not  be  regarded.^  If  there  is  an  executory  agreement  not  to 
claim  the  statutory  exemption  of  personal  property,  it  is  held 
invalid  and  not  enforceable;^  but,  for  a  consideration,  speci- 
fied chattels  may  be  removed  from  the  operation  of  exeni{)- 
tion  laws;  particular  creditors  may  be  favored,  and  it  has 
been  held  that  all  exemption  of  personalty  may  be  waived  in 
a  promissory  note.*  A  waiver,  good  for  the  creditor  favored, 
is  not  therefore  available  by  others.^  If  made  by  a  member 
of  a  firm,  it  is  good  against  himself,  but  not  his  partners, 
though  he  signed  the  firm  name.^ 

The  waiver  of  all  exemption,  in  a  ])romissory  note,  is  good 
as  to  personal  property,**  but  it  should  be  stated  in  the  judg- 
ment,^ since  otherwise  it  is  nugatory.^  If  the  waiver  is  of 
homestead  exemption,  chattels  may  be  claimed,  as  it  is  not  ex- 
tended by  construction  beyond  the  literal  expression.^  If  a 
note  is  given  with  a  lien  upon  a  particular  chattel,  exemption 
is  waived  as  to  that  while  it  remains  unaffected  as  to  other 
chattel^.^*'  This  was  held  in  one  jurisdiction,  while  in  another 
it  was  decided  that  a  mortgage  of  personal  property,  whether 
w^ritten  or  verbal,  is  not  a  waiver  of  exemption  unless  the  in- 
tention to  forego  it  be  clearly  expressed."  With  respect  to  the 
lien  of  a  landlord  for  rent  there  may  be  waiver  of  exemption 
in  the  lease ;  '^  but  where  there  is  no  protection  of  chattels 
from  rent  judgments  such  stipulation  in  a  lease  would  be  un- 
necessary. 

The  attaching  creditor,  by  demanding  an  inventory  of  the 

ing  before  attachment  sale.     Rice  v.  224 ;  Alabama  Code  of  1886,  g  2083 ; 

Nolan,  33  Kan.  28.  Neely  v.  Henry,  63  Ala.  261. 

1  Recht  V.  Kelly,  82  111.  147 ;  ante,  7  75. 

p.  869.  8  Courie  v.  Goodwin,  89  Ala.  569 ; 

2Bran<:h   v.   Tomlinson,   77   N.  C.  Hosea  v.  Talbert,  65  Ala.  173;  Brown 

388.     Compare  Fogg  v.  Littlefield,  68  v.  Leitch,  60  Ala.  313. 

Me.  52,  and  Brown  v.  Leitch,  60  Ala.  9Reed  Lumber  Co.  v.  Lewis  (Ala.). 

313.  10  So.  333.     See  Smith  v.  Fellows,  58 

3  Cases  cited  in  the  next  paragraph.  Ala.  467,  as  to  the  time  of  presenting 

4  Bowman  v.  Tagg,  12  Phila.  345.  the  claim. 

5  Terrell  v.  Hurst,  76  Ala.  588.  '"  jMyuatt  v.  McGill,  3  Lea,  72. 
6Agnew  V.  Walden  (Ala.),   10  So.  n  Knox  v.  Wilson,  77  Ala.  S09. 

1^  Hoisingtou  v.  Huff.  24  Kan.  379. 


886  EXEMPTING    ATTACHED   CHATTELS. 

defendant's  property,  waives  objection  to  the  sufficiency  of 
the  exemption  claim.^  On  the  other  hand,  if  the  defendant 
points  out  specific  property  to  the  sheriff,  for  execution,  he 
waives  his  right  to  claim  it  after wards.^  11  is  hesitancy  when 
notified  by  the  officer  to  claim  —  saying  that  he  "  would  go 
and  see  about  it  " —  was  held  to  be  no  waiver.'' 

After  the  defendant's  property  has  been  seized,  he  may  be- 
come bailee  under  the  sheriff  and  have  charge  of  it  in  that 
capacity,  and  yet  not  yield  his  right  to  claim  his  exemption.* 

§  5.  Sale  Pendente  Lite. 

When  there  is  an  order  of  court  to  sell  attached  articles 
before  final  judgment,  the  debtor  before  sale  should  claim 
them  as  exempt,  if  he  is  to  claim  at  all.'^  The  property  may 
be  perishable,  or  there  may  be  some  other  good  reason  ren- 
dering it  proper  for  the  judge  as  custodian  of  the  seized  goods 
to  convert  them  into  money;  or  there  may  be  the  consent  of 
both  parties  for  the  preliminary  sale.  If  the  order  of  sale 
has  been  duly  issued,  the  authorization  of  the  constitution  of 
the  state  for  the  selection  of  specific  property,  and  the  direc- 
tion of  the  statute  as  to  the  method  of  selection  by  the  debtor 
who  is  the  head  of  a  family,  and  the  provision  that  sale  of 
selected  articles  may  be  prevented  by  suj^ersedeas^  do  not 
give  the  defendant  any  right  to  claim  after  he  has  let  the 
proper  time  slip.  He  then  comes  up  too  late  to  take  the 
])roceeds  of  the  sold  goods  as  exempt.  In  the  case  above 
cited  the  debtor  had  agreed  that  the  sale  might  be  made,  yet 
he  sought  to  claim  the  proceeds  after  sale.  His  assent  to  the 
sale  does  not  seem  to  have  had  weight  in  determining  the 
legality  of  it,  as  will  appear  from  the  second  form  of  the 
question  formulated  by  the  counsel  on  both  sides  of  the  case 
and  submitted  to  the  court :  "•  Can  the  debtor  set  up  and 
maintain  his  claim  for  exemptions  after  property  has  been 
seized  by  attachment  and  sold  by  the  sheriff  upon  an  order 
made  by  the  judge  in  vacation  with  the  consent  of  the  debtor? 

'  Trager  v.  Feebleman  (Ala.),  10  So.  3  Green  v.  BJunt,  59  la.  79. 

213;  Alabama  Code,  gi^  25A,  2525.  *  Paiham    v.   McMurray,   32  Ark. 

2  People  V.  Johnson,  4  111.  A  pp.  346 ;  261. 

Flander  v.  Wells,  61  Ga.  195 ;  Georgia  »  Surratt  v.  Young,  55  Ark.  447 ;  18 

Code,  g  2040.  S.  W.  539. 


SALE    PENDENTE    LITE.  887 

In  other  words,  can  the  debtor  maintain  his  chiim  to  exemp- 
tions out  of  the  proceeds  of  the  sale  of  his  property  by  the 
sheriff  upon  request  of  the  creditors  under  an  order  of  at- 
tachment pending  the  htigation?"  The  constitution  of  the 
state  provides:  "The  personal  property  of  any  resident  in 
this  state  who  is  married  or  the  liead  of  a  family,  in  specific 
articles,  to  be  selected  by  such  resident,  n(jt  exceeding-  in 
value  the  sum  of  S^^OO,  in  addition  to  iiis  or  her  wearing  ap- 
parel, shall  be  exempt."^  The  governing  statute  provides: 
"  Whenever  any  resident  of  this  state  shall,  upon  the  issue 
against  him  for  the  collection  of  any  debt  by  contract  of 
any  execution  or  other  process,  or  of  any  attachment  except 
specific  attachment  against  his  property,  desire  to  claim  any 
of  the  exemptions  provided  for  in  article  9  of  the  constitu- 
tion of  this  state,  he  shall  prepare  a  schedule,  verified  by 
affidavit,  of  all  his  property,  including  moneys,  rights,  choses 
in  action,  held  by  himself  or  others  for  him,  and  specifying 
the  particular  property  which  he  claims  as  exempt,  under  the 
provisions  of  said  article."  ^ 

The  submitted  question  was  answered  in  the  negative,  in 
view  of  the  provisions  of  the  constitution  and  statute.^     If, 

•  Const.  Ark.,  art.  9,  g  2.  the  creditor  may  not  be  prejudiced 
2Mausf.  (Ark.)Dig.,  §  3006.  in  his  rights.  Prima  facie  all  the 
3  The  court  said  of  them :  •'  These  property  of  the  debtor  is  subject  to 
provisions  seem  to  require  that  the  sale  on  execution  for  the  payment  of 
debtor  shall  claim  his  exemptions  in  his  debts.  But  the  constitution  con- 
specific  articles,  to  be  selected  by  him.  fers  upon  him  the  privilege  of  claim- 
Most  of  the  authorities  bearing  upon  ing  specific  articles  of  his  property 
the  question,  when  must  the  selection  as  exempt  from  execution,  and  the 
be  made?  hold  that  it  must  be  made  statute  points  out  particularly  the 
in  a  reasonable  time ;  and  they  all  manner  in  which  this  must  be  done, 
seem  to  agree  —  as  far  as  we  have  and  provides  that  when  it  is  thus 
examined  —  that,  as  a  rule,  the  selec-  done  a  supersedeas  shall  be  issued  to 
tion  must  be  made  before  the  sale  of  prevent  the  sale  of  the  property  thus 
the  property,  which  is  said  in  most  selected  as  exempt  If  the  debtor 
of  the  cases  in  reference  to  a  sale  of  were  permitted  to  stand  by  and  eee 
the  property  attached  on  final  pro-  his  pi-operty  sold,  without  claiming 
cess.  It  would  seem  that  the  claim  his  exemptions  in  specific  articles, 
of  exemption  should  be  made  in  ac-  and  then  be  allowed  to  claim  the 
cordance  strictly  with  the  require-  amount  in  value  of  his  exemptions 
ments  of  the  statute,  and  in  apt  time,  out  of  the  proceeds  of  tlie  sale  of  his 
that  the  debtor  may  have  the  benefit  property,  it  is  not  difficult  to  see  lio.v 
of  the  humane  provisions  of  the  law  he  might  work  tliis  to  the  prejudice 
in  reference  to  exemptions,  and  that  of  his  creditors,  and  how  an  improvi- 


EXEMPTING    ATTACHED    CHATTELS. 


after  sale  before  trial,  the  creditor  fail  to  get  judgment,  the 
proceeds  of  the  sale  would  go  to  the  defendant  as  a  matter  of 
course; — not  because  they  are  exempt  but  because  they  be- 
long to  him.  The  time  of  claiming  generally  is  any  day  be- 
fore the  trial  of  the  attachment  case.^  But  when  there  is  an 
order  for  sale  while  the  attachment  is  ]  ending,  the  time  for 
claiming  cannot  be  any  day  before  trial  but  must  be  before 
the  preliminary  sale,  according  to  the  authority  above  cited 
on  this  particular  point. 

§  6.  Garnisliment  in  Foreign  Jnristliction. 

"  A  creditor,  who  attempts  to  evade  the  exemption  laws  of 
his  state  by  resort  to  attachment  proceedings  in  the  court  of 
another  state  against  the  property  of  a  debtor  who  is  a  resi- 
dent of  the  state  of  the  creditor's  domicile,  may  be  enjoined 
by  the  courts  of  the  latter  state  from  prosecuting  his  suit  in 
the  foreign  jurisdiction."  ^  The  creditor  may  be  enjoined  — 
not  the  court  in  which  he  would  proceed.^  But  it  is  also  held, 
in  the  case  first  above  cited,  that  when  the  parties  live  in  dif- 
ferent states,  the  creditor  may  attach,  in  his  own,  the  property 
of  the  debtor  found  there,  though  such  property  may  be  ex- 
dent  and  thriftless  man,  by  permit-  of  exempt  chattels  attached  when 
tin '^  the  sale  of  liis  property  exempt  maCie pendente  lite.  Surrattv.  Young, 
by  law  from  execution,  and  necessary  supra,  citing,  among  other  autliori- 
for  tlie  use  of  his  family,  mightthwart 
the  purpose  of  tiie  law  in  securing 
the  right  to  a  debtor  to  claim  his  ex- 
emption. We  do  not  think  that  the 
statute  confers  upon  a  debtor  the 
right  to  claim  his  exemptions  out  of 
the  proceeds  of  property  after  it  is 
sold  under  the  process  of  the  court, 
or  under  an  order  of  the  court,  as  in 
this  case,  when  he  has  an  opportu- 
nity to  and  might  claim  his  exemp- 
tions in  specific  articles,  as  provided    v.  Boyd,  56  Pa.  St.  403. 


ities,  King  v.  Ruble,  54  Ark.  418; 
Brown  v.  Peters,  53  Ark.  182 ;  Cham- 
bers V.  Perry,  47  Ark.  400;  Healey 
V.  Connor,  40  Ark.  352 ;  Norris  v. 
Kidd,  28  Ark.  499. 

iBancord  v.  Parker,  65  Pa.  336; 
Borland  v.  O'Neile,  22  Cal.  505 ;  Col- 
lins V.  Nichols,  5  Ind.  447 ;  Cooper  v. 
Reeves,  13  Ind.  53.  Statutes,  provid- 
ing how  chattels  shall  be  claimed  as 
exempt,  strictly  construed.     Collins 


by  the  statute."  The  consent  of  the 
debtor  to  the  sale  by  indorsing  it 
upon  the  petition  did  not  affect  the 
question ;  and  the  fact  that  he  had 
made  an  assignment  before  the  at- 
tachment "cuts  no  figure"  in  the 
opinion:  so  the  decision  has  a  gen- 
eral application  in  its  state  to  all  sales 


^  C.  J.  Cockrill,  for  the  court,  in 
Griffith  v.  Langsdale,  53  Ark.  73, 
citing  Cole  v.  Cunningham,  133  U.  S. 
107;  Keyser  v.  Rice,  47  Md.  203; 
Snook  V.  Snetzer,  25  O.  St  516;  Wil- 
son V.  Joseph,  107  Ind.  490 ;  Hagar  v. 
Adams,  70  la.  746. 

3  Pickett  V.  Ferguson,  45  Ark.  177. 


GARNISHMENT  IN  FOREIGN   JURISDICTION.  889 

empt  in  the  debtor's  state.  Should  tlie  creditor  bo  found  in 
the  state  of  the  debtor's  domicile,  courts  there  cannot  enjoin 
him  from  prosecuting  the  proceedmgs  instituted  at  his  home. 

The  purchase  of  claims  against  railroad  employees,  to  be 
taken  to  another  state  for  the  purpose  of  garnishing  the  rail- 
road company  for  the  wages  of  such  employees  which  are  ex- 
empt at  their  domicile,  has  been  vigorously  condemned  as  "an 
attempt  to  defraud  the  laws  of  the  state."  .  .  .  The  peti- 
tion, in  a  case  to  enjoin  a  person  so  purchasing  and  garnish- 
ing, cliarged  tiiat  the  claims  "  w^ere  bought  with  the  sole  pur. 
pose  of  having  them  collected  in  foreign  jurisdictions  out  of 
the  employees'  wages  for  the  last  thirty  days  of  service,  and 
thus  evade  our  own  statute.  .  .  ."  Tiie  court,  assuming 
this  allegation  to  have  been  proved  in  the  lower  court,  said : 
"  The  jurisdiction  of  a  court  of  equity  in  this  state  to  prevent 
a  fraud  of  that  character  is  unquestioned.  It  is  not  an  at- 
tempt on  the  part  of  the  court  to  interfere  with  courts  in 
other  jurisdictions,  but  to  restrain  a  defendant,  wdio  is  within 
its  own  jurisdiction,  from  committing  a  wrong."  ^ 

Can  the  garnishee  invoke  a  court  of  equity  and  enjoin  the 
plaintiff  from  garnishing  in  another  jurisdiction?  If  the  gar- 
nishee is  a  railroad  company,  may  it  protect  its  own  employ- 
ees in  this  way?  The  court,  in  the  case  first  above  cited,  an- 
swered in  the  affirmative,  provided  the  garnishee  join  with 
the  injured  party. 

The  creditor  who,  in  contravention  of  the  law  of  his  own 
state,  sends  his  claim  out  of  it,  assigns  it  to  a  person  in  an- 
other state  for  the  ]nirpose  of  having  it  collected  there  by 
garnishment  while  his  debtor  lives  in  his  own  state,  may  be 
sued  civilly  for  damages,  though  he  be  also  liable  criminally.^ 

1  Wabash  R  Co.  v.  Seifert,  41  Mo.  men    by     garnishing     the    Wabash 

App.   35 ;  Totld   v.  Railroad,    33  Mo.  Western  Ry.  Co.),  and  were  taken  to 

App.  110;  Fielder  v.  Jess  up,  24   Mo.  IlUnois  for  the  purpose   of   the  gar- 

App.  91;  Missouri  R.  Co.  v.  Maltby,  nishiiieut. 

34  Kan.  125;  Cunningham  v.  Butler,  -'Kestler  v.  Kern  (Ind.),  28  N.   E. 

143  Mass.  47;  Engel   v,  Scheuerman,  726    {(UstinguisJiing  Uppinghouse  v. 

40  Ga.  20G ;  Teager  v.  Laudsley,  27  Mundel,  103  Ind.  238) ;  Stack  v.  Bare, 

N.  W.  739.     In   the  Wabash  cases,  39  Kan.   100.     "It  is  made  a  crime 

claims    against  railroad    men  were  punisliable     by    fine,"    says    Judge 

bought  in  Missouri  (where  they  could  Crumpacker,  in  the  case  above  cited, 

not  be  made  out  of  the  wages  of  the  "  for  any  person  to  send,  or  cause  to 


890 


EXEMPTING    ATTACHED    CHATTELS. 


Statutory  inhibition  of  the  assignment  of  ckiims  to  be  sued 
upon  in  a  state  foreign  to  that  of  the  assignment,  for  the  pur- 
pose of  depriving  a  debtor  of  his  exem{)tion  riglit,  has  been 
held  to  be  not  contrary  to  the  provision  of  the  federal  consti- 
tution that  "citizens  of  each  state  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  of  the  several  states."  ^ 
And,  without  such  statutory  inhibition,  it  is  held  that  an  ex- 
emptionist  may  restrain  his  creditor  from  prosecuting  suit  in 
another  state,  to  the  defeat  of  his  exemption  privilege,  by 
writ  of  injunction.'^ 

A  statute  forbade  the  creditor  to  send  his  claim  out  of  the 
state  to  be  sued  upon  with  the  view  of  depriving  the  debtor  of 
the  benefit  of  the  exemption  laws.'  If  he  does  not  send  the 
claim,  but  takes  it  to  a  foreign  jurisdiction,  does  he  violate  the 
law?  He  would  violate  its  spirit,  if  his  purpose  be  to  cut  off 
his  debtor  from  the  privilege  of  pleading  exemption.  In  a  case 
under  this  law,  a  creditor  went  to  a  neighboring  state  i\)V  the 
purpose  of  garnishing  a  railroad  company  there  which  op- 


be  sent,  any  claim  against  a  citizen 
of  this  state,  into  another  state,  oi'  to 
assign  or  transfer  such  claim,  for  the 
purpose  of  being  collected  in  the 
courts  of  another  state,  with  the  pur- 
pose and  intention  of  depriving  such 
debtor  citizen  of  his  rights  under  the 
exemption  laws  of  tliis  state,  where 
tlie  parties  and  subject-matter  are 
within  the  jurisdiction  and  could  be 
reached  by  the  process  of  the  courts 
in  this  state.  Sections  2163,  2163, 
Rev.  Stat.  1881 ;  State  v.  Dittmar,  120 
Ind.  54."  .  .  .  "If  an  officer  re- 
fuses to  surrender  property  exempt 
from  sale,  but  proceeds  to  dispose  of 
it,  the  debtor  may  recover  the  prop- 
ert}'  in  the  hands  of  an  innocent  pur- 
chaser, or  he  may  sue  the  officer  and 
the  judgment  plaintiff,  or  either  of 
them,  for  trespass,  and  recover  the 
value  of  the  property,  notwithstand- 
ing he  may  liave  had  credit  for  it 
upon  his  debt.  Huseman  v.  Sims, 
104  Ind.  317;  .  .  .  Conwell  v.  Con- 
well,  100  Ind.  437 ;    .    .    .     Douch  v. 


Rahner,  61  Ind.  64;  Graham  v. 
Crocket,  18  Ind.  119;  Haswell  v.  Par- 
sons, 15  Cal.  266;  Belou  v.  Robbins, 
76  Wis.  600;  .  .  .  State  v.  Har- 
rington, 33  Mo.  App.  476 ;  Alsup  v. 
Jordan,  69  Tex.  300.  .  .  ."  The 
profession  will  hardly  assent  to  the 
last  clause  above  quoted  from  Judge 
Crumpacker,  if  meant  to  apply  to 
cases  in  which  the  debt  has  been 
paid. 

1  Sweeny  v.  Hunter,  145  Pa.  St.  363 ; 
22  A.  653 ;  U.  S.  Const,  art.  4,  §  2 ; 
Pa.  P.  L.  164. 

'^  lb.;    Cole    v.    Cunningham,    133 
U.  S.   107 ;   Story's   Eq.  Jur.,  §§  899 
890 ;  Zimmerman  v.  Franke,  34  Kan 
650 ;  Wilson  v.  Joseph,  107  Ind.  490 
Mumper  v.   Wilson,   72  Iowa,   163 
Teager  v,   Landsley,   69   Iowa,  725 
Engel    V.    Scheuerman,  40   Ga.   206 
Dehon  v.  Foster,  7  Allen,  57 ;  Keyser 
V.  Rice,  47  Md.  203 ;  Snook  v.  Snet- 
zer,  25  Ohio  St.  516. 

3Ind.R  S.  (1^81),  §  2162. 


GARNISHMENT    IN    FOKEION    JUKISDICTION.  89 1 

erated  in  both  states  and  was  amenable  to  suits  in  cither. 
The  purpose  being  proved,  the  court  held  that  his  taking  the 
claim  there  was  equivalent  to  his  sending  it  there,  and  so  the 
statute  had  been  violated.'  Had  he  moved  from  his  state 
where  the  claim  originated  to  the  neighboring  state,  for  the 
general  purpose  of  changing  his  home,  and  not  the  particular 
object  of  collecting  his  debt  by  garnishment  where  the  ex- 
emption could  not  be  successfully  ])leaded,  the  decision  ought 
to  have  been,  and  doubtless  would  have  been,  the  other  way. 

The  creditor  has  a  perfect  legal  right  to  remove  from  his 
state  to  another,  and  to  collect  his  debt  in  the  latter,  by  gar- 
nishment, from  a  debtor  living  in  the  former.  In  such  case, 
when  this  has  been  done,  the  debtor  may  have  been  incon- 
venienced ;  but  since  there  has  been  no  breach  of  duty  on  the 
part  of  the  creditor,  he  has  inflicted  no  injury  upon  the 
debtor.  Had  he  done  an  unlawful  act  resulting  in  injury  to 
the  public,  a  person  sharing  the  injury  with  the  rest  of  the 
community  is  not  legally  damaged  so  as  to  be  entitled  to  com- 
plain personally :  this  illustrates  injuria  sine  damno. 

A  railroad  employee  named  Bare,  the  head  of  a  family,  was 
indebted  to  one  Stark,  who  assigned  his  claim.  The  assignee 
sued  Bare  in  a  state  where  the  railroad  was  operated  but  not 
where  the  employee  resided,  and  garnished  the  railroad  com- 
pany for  wages  due  the  defendant.  Bare  could  not  have  his 
wages  exempted  there,  though  they  were  exempt  in  his  own 
state ;  so  the}'^  were  applied  to  his  debt.  Then  he  sued  Stark 
for  damages  because  of  the  transfer  (which  was  without  con- 
sideration) which  had  resulted  in  his  deprivation  of  his  right 
of  exemption  and  the  injury  of  his  credit  with  the  company. 
Bare  alleged  that  Stark  owed  him  a  greater  sum,  at  the  time 
of  the  assignment,  than  that  which  was  assigned,  sued  upon 
and  put  in  judgment  against  him.  No  recovery  on  the  indebt- 
edness of  Stark  to  Bare  was  claimed  in  the  action.  The  court 
said:  "We  have  .  .  .  held  that  where  a  citizen  of  this 
state  attempts  by  a  proceeding  of  attachment  or  garnishment 
in  another  state  to  subject  to  the  payment  of  his  debt  personal 
earnings  of  the  debtor  which  under  our  laws  are  exempt,  and 
thus  prevent  such  debtor  from  availing  himself  of  the  benefit 
of  the  exemption  laws  of  the  state,  an  action  by  injunction 

1  State  V.  Dittmar,  120  Ind.  54,  388. 


892  EXEMPTING    ATTACHED    CHATTELS. 

restraining-  the  wrongful  action  may  be  maintained  by  the 
debtor  agrainst  such  wrong-doer.  .  ,  .  We  think  it  is  a 
wrong  which  may  not  only  be  restrained  by  injunction,  but 
that  the  citizen  who  proceeds  and  inflicts  the  wrong  is  liable 
to  the  debtor  to  the  extent  of  the  injury  sustained."^ 

In  another  state,  under  a  similar  exemption  law,  a  creditor 
reached  his  debtor's  exempt  earnings  by  garnishment,  and  the 
latter  sued  and  recovered  therefor  in  his  own  state  —  the  court 
saying:  "It  is  well  settled  that  if  exempt  property  is  seized 
and  applied  to  the  payment  of  a  judgment,  the  owner  may 
have  his  action  against  the  wrong-doer,  unless  such  exemption 
is  waived  by  some  act  or  omission  of  the  debtor."  ^  Under 
difi'erent  states  of  facts,  the  principle  enounced  in  these  cases 
has  been  repeatedly  recognized.^ 

§  7.  Garnishment  and  State  Comity. 

Where  the  parties  and  the  subject-matter  are  within  one 
state,  a  court  of  that  state  is  the  proper  tribunal  to  settle  the 
contest.  If  one  party  seeks  the  tribunal  of  a  different  state, 
and  has  his  suit  settled  under  laws  different  from  those  which 
would  have  governed  at  the  home  of  the  parties  (especially 
if  that  tribunal  be  an  inferior  one  and  there  is  good  reason  to 
believe  that  its  decree  would  have  been  reversed  on  appeal), 
it  has  been  thought  that  comity  does  not  require  courts  in  the 
state  of  the  parties  to  regard  the  foreign  judgment.*  "  It 
would  be  carrying  the  rule  of  comity  to  an  absurd  length  for 
our  courts  to  give  to  foreign  creditors  a  better  position  in  this 
respect  than  they  do  domestic  creditors."  ^ 

The  doctrine  has  been  advanced,  and  stoutly  advocated  and 
judicially  acted  upon,  that  when  the  creditor  and  his  debtor 

1  Stark  V.  Bare,  39  Kan.  100.  had  gone  from    New  York,   where 

'■^Albrecht  v.  Treitschke,    17   Neb.  both  parties  Hved,  to  Vermont,  and 

205.  obtained  judgment  there  when  he 

3  Vail  V.  Knapp,  49  Barb.  299 ;  Has-  could  have  obtained  none  under  the 

well  V.  Parsons,  15  Cal.  266  ;  Snook  laws  of  New  York  —  and  it  was  this 

V.  Snetzer,  25  Ohio  St.  516  ;  Phelps  v.  which    was    thought     not    binding, 

Goddard,   1   Tyler  (Vt.),  60;  Piiillips  when  tested  in  New  York,  and  when 

V.  Hunter,  2  H.  Black.  403;  Williams  to  the  prejudice  of  a  New  York  citi- 

V.  Ingersoll,  89  N.  Y.  508 :  Osgood  v.  zen. 

Maguire,  61  N.  Y.  529.  5  Martin  v.  Cent.  Vt.  Ry.  Co.,  supra, 

*  Leonard,  J.,  in  Martin  v.  Central  by  the  court;  citing  Osgood  v.  Ma- 

Vt  Ry.  Co.,  50  Hun,  854    One  party  guire,  supra. 


GAUNISIIMENT    AND    STATE    COMITY.  893 

reside  in  the  same  state,  and  the  debt  was  created  tliere  and 
intended  to  be  payable  there,  and  tlie  debt  is  tor  wages  wiiich 
are  exempt  there,  "  the  exemption  of  wages  is  such  an  incident 
of  the  deht  from  the  emjAoijer  that  it  will  follov)  tlte  debt,  if  the 
deJjt  folloios  the  garnishee  [into  another  state],  .  .  .  a^id 
attach  itself  to  ever^  process  of  collection  .  .  .  [there],  un- 
less jurisdictioii  is  obtained  over  the  person  of  the  pn^incipal 
debtor^  ^ 

If  the  doctrine  is  sound,  the  exception  seems  unnecessary, 
for  tlie  foreign  court's  acquisition  of  jurisdiction  "  over  the 
person  of  the  principal  debtor"  would  render  his  position 
neither  better  nor  worse.  Jurisdiction  over  the  tiling  at- 
tached, and  notice  to  the  principal  debtor  so  that  he  may  ap- 
pear and  defend  if  he  choose,  is  all  that  the  court  needs  to 
authorize  it  to  condemn  the  thing:  so  the  question  of  comity 
is  not  dependent  upon  jurisdiction  over  the  principal  defend- 
ant's person. 

With  this  qualification  of  the  doctrine  eliminated,  the  prin- 
ciple stated  is  that  a  credit  exempt  in  one  state  is  so  in  all. 
No  doubt  it  is  competent  for  the  court  of  one  state  to  respect 
the  exemption  laws  of  another,  and  the  comity  is  commend- 
able. When,  by  the  pleadings,  by  the  disclosure  of  the  gar- 
nishee, or  in  any  proper  way,  the  benefit  of  the  law  is  claimed 
and  the  law  brought  to  the  knowledge  of  the  court,  it  would 
be  well  if  every  court  in  every  state  of  the  Union  would  ob- 
serve such  comity.  But  the  doctrine  is  not  universally  estab- 
lished. In  the  present  state  of  things,  a  court,  having  juris- 
diction of  the  plaintiff,  and  of  the  defendant  or  his  property 
or  credit  as  the  case  may  be,  and  of  the  garnishee,  and  of  the 
subject-matter,  may  observe  such  comity  or  not.     In  the  case 

1  Drake  v.  Lake  Shore,  etc.  R.  Co..  Railroad  Co.,  19  Neb.  241 ;  De  Witt 
69  Mich.  168,  179.  All  the  parties,  v.  Machine  Co.,  17  Neb.  533;  Railroad 
including  the  garnishee,  lived  in  Co.  v.  Dooley,  78  Ala.  524 ;  Pierce  v. 
Indiana.  The  creditor  assigned  his  Railway  Co.,  36  Wis.  283;  Baylies  v. 
claim  —  the  assignee  sued  in  Michi-  Houghton,  15  Vt.  626;  Tingley  v. 
gan,  and  garnished  the  Lake  Shore  Batenian,  10  Mass.  343 ;  Sawyer  v. 
Railroad  Co.,  which  did  business  in  Thompson,  4  Frost  (N.  H.),  510 ;  Rail- 
both  states.  The  court  cited  the  fol-  way  Co.  v.  Maltby,  34  Kan.  123 ;  Love- 
lowing  cases  as  supporting  the  doc-  joy  v.  Albee,  33  Me.  414 ;  Hamilton  v. 
trine  above  stated :  Wright  v.  Rail-  Rogers,  67  Mich.  135. 
road   Co.,    19   Neb.    175;    Turner    v. 


894  EXEMPTING    ATTACH I:D    CHATTELS. 

last  cited,  the  court  took  ground  for  the  comity  and  settled 
the  law  of  the  state  in  favor  of  it,  so  that  the  profession  may 
regard  it  as  settled  there  that  cxem])tion,  attached  to  a  credit, 
follows  it  across  state  lines  into  that  state,  and  will  be  re- 
garded there  because  of  its  creation  in  another  state. 

But  what  shall  be  said  of  a  court,  with  complete  juris- 
diction over  the  parties,  the  subject-matter  and  the  res  (or 
rather,  over  the  plaintiff,  tlie  garnishee,  the  subject-matter, 
and  also  over  either  the  res  or  the  defendant,  or  both),  which 
holds  itself  bound  by  the  laws  of  its  own  state  only,  and  not 
bound  to  give  effect  to  the  exemption  laws  of  other  states? 
If  such  court  charges  the  garnishee,  and  gives  judgment  against 
the  principal  debtor,  and  subjects  the  attached  credit  to  the 
pa3'^ment  of  the  debt — all  according  to  the  laws  of  its  juris- 
diction —  who  shall  gainsay  the  judgment?  The  final  decree 
of  a  court  clothed  with  jurisdiction  must  be  everywhere  re- 
spected, so  far  as  the  contest  before  it  is  adjudicated,  when 
there  is  no  matter  of  juridical  morals  at  stake.  There  is  none 
when  the  contest  merely  involves  exemption.  When,  by  the 
laws  of  one  state,  preference  is  given  to  one  creditor  over  an- 
other of  equal  rank  in  an  insolvent's  assignment,  a  court  of 
another  state,  where  such  preference  is  held  juridically  im- 
moral and  fraudulent,  may  disregard  the  foreign  statute  in 
an  action  to  enforce  it  in  the  latter  state.  So,  in  slavery 
times,  courts  of  a  free  state  were  not  bound  to  enforce  the 
law  of  a  slave  state  determining  the  status  of  a  man  to  be 
that  of  a  slave,  but  might  repudiate  it  on  juridically  moral 
grounds.  But  when  no  such  grounds  exist,  comity  requires 
that  the  statutes  duly  enacted  in  one  state  must  be  re- 
spected in  another.  And  exemption  questions  constitute  no 
exception. 

The  position  taken  in  a  case  above  noticed,^  that  the  foreign 
judgment  of  an  inferior  court  may  be  disregarded  when  there 
is  good  reason  to  believe  that  it  would  have  been  reversed  had 
the  case  been  appealed,  seems  wholly  untenable.  Judgments 
of  inferior  courts,  when  they  are  final  —  when  the  jurisdiction 
has  been  exhausted  —  are  as  much  to  be  respected  as  any 
other.     The  final  decree  of  a  justice  of  the  peace  is  as  sacred 

1  Martin  v.  Central  Vt.  R  Co.,  supra,  in  the  separate  opinion  of  Leonard,  J. 


GARNISHMENT    AND    STATE    COMITY.  805 

in  the  state  where  it  was  rendered,  and  as  much  to  be  re- 
spected in  other  states,  as  though  rendered  by  a  supreme 
court.  AVhat  wouhl  become  of  our  whole  judicial  system  if 
a  judgment  in  one  state  couhl  be  disregai'ded  in  another  on 
the  ground  that  it  might  have  been  reversed  had  it  been  ap- 
pealed? 

No  one  Avould  seriously  contend  for  such  loose  o])servance 
of  the  constitutional  requirement  that  "  full  faith  and  credit 
shall  be  given  in  each  state  to  the  .  .  .  jutlicial  proceed- 
ings of  every  other  state,"  ^  in  its  application  to  judgments 
generally;  and  there  is  no  reason  why  judgments  affecting  ex- 
emption should  form  an  exception. 

The  principles  enounced  by  the  courts  of  one  state  are  often 
far  from  deserving  full  faith  and  credit  in  every  other  state, 
and  there  is  no  constitutional  mandate  that  such  credit  should 
be  given  them ;  but  any  judicial  proceeding  of  a  court,  how- 
ever inferior  (whether  it  might  have  been  reversed  on  ap- 
peal had  appeal  been  taken,  or  not),  is  entitled  to  full  faith 
and  credit  in  all  the  states. 

If,  therefore,  the  wages  of  a  railroad  employee  are  exempt 
in  the  state  where  the  wage-earner  and  the  emplo3'ing  cor- 
poration are  domiciled,  and  the  latter  is  garnished  in  another 
state  and  legally  made  to  pay  those  wages  to  the  laborer's 
creditor,  in  accordance  with  the  laws  of  the  latter  state,  full 
faith  and  credit  must  be  given  in  the  former  stat6  to  that  ju- 
dicial proceeding. 

Is  the  wage-earner  then  without  any  remedy  at  home?  No. 
He  has  his  remedy  and  may  have  two.  He  may  sue  his  cred- 
itor who  injured  him  by  depriving  him  of  his  exemption  right, 
whether  by  garnishing  the  company  in  a  state  where  that 
right  could  not  be  successfully  set  up,  or  by  assigning  his 
claim  that  the  assignee  might  do  so  —  for  the  wrong  to  the 
exemptionist  is  the  same,  whichever  course  his  creditor  may 
have  pursued.  The  cases  above  cited,  in  which  the  exemption- 
ist resorted  to  such  remedy  and  succeeded,  were  decided  on 
broad  grounds,  good  everywhere  —  not  on  any  peculiar  ])ro- 
visions  of  any  state  statute.  If  the  exemptionist  can  show 
that  he  has  been  wrongfully  deprived  of  a  right,  and  thereby 
injured,  he  ought  to  have  his  right  of  action  for  reparation. 

1  Const.  U.  S.,  art  IV,  sec.  1. 


896  EXEMl'TING    ATTACHED    CHATTELS. 

against  the  wrong-doer,  in  whatever  state  the  wrong  may 
have  been  perpetrated. 

And  he  may  elect  to  sue  the  garnishee  who  has  been  made 
to  pay  once,  if  there  was  no  disclosure  that  the  claim  was  for 
wages  and  that  the  wages  were  exempt,  provided  the  charg- 
ing of  the  garnishee  was  owing  to  the  want  of  such  disclosure 
by  him.  If,  on  the  other  hand,  no  fault  attaches  to  the  gar- 
nishee, the  wronged  exemptionist  is  shut  up  to  his  remedy 
against  his  creditor  who  wronged  him. 

§  8.  Garnishee's  Disclosure  in  Foreign  Jurisdiction. 

The  garnishee  would  not  make  himself  liable  for  not  dis- 
closing that  the  defendant's  credit  attached  in  his  hands  is 
exempt  in  the  state  of  his  and  the  defendant's  domicile,  if  the 
law  of  the  state  (where  the  garnishment  proceeding  is  had) 
forbids  the  pleading  of  the  exemption  laws  of  a  different  state, 
or  holds  them  no  defense  for  the  garnishee  or  the  principal 
defendant. 

The  law  of  some  states,  as  expounded  by  their  courts,  does 
disfavor  such  pleading  and  defense.  In  a  case  where  both 
plaintiff  and  defendant  resided  in  a  state  where  wages  were 
exempt,  and  a  railroad  company  was  garnished  in  another 
state  for  the  wages  of  the  debtor,  the  garnishee  was  charged, 
and  the  court  held  that  the  law  exempting  wages  in  the 
debtor's  state  could  not  be  invoked  to  save  his  wages.^  Soon 
after,  in  the  same  state,  it  was  judicially  declared  to  be  a  set- 
tled rule  there  that  the  exemption  laws  of  another  state  can- 
not be  pleaded  or  relied  upon  as  a  defense  by  either  the  gar- 
nishee or  judgment  debtor." 

"While  the  decisions  touching  this  subject,  and  which  have 
been  relied  upon  sometimes  to  sustain  the  doctrine  that  one 
state  is  not  bound  to  enforce  the  exemption  laws  of  another, 

1  Mooney  v.  Railroad  Co.,   60   la,  road  Co.  v.  May,  25  O.  St.  347 ;  Pierce 

346.  V.  Railway  Co.,  36  Wis.  283 ;  Banks 

2Broadstreet  v.  Clark,  65  la.  670.  v.  Railway  Co.,  45  Wis.  172;  Lock  v. 
See,  as  bearing  more  or  less  on  this  Johnson,  36  Me.  464 ;  Railroad  Co.  v 
"rule."  Leibner  v.  Railroad  Co.,  49  Ragland,  85  111.  375 ;  and  see  there- 
la.  688 ;  Newell  v.  Ilayden.  8  la.  140 ;  view  of  those  cases  by  Moi'se,  J.,  for 
Morgan  v.  Neville,  74  Pa.  St.  52.  See,  tlie  Michigan  court,  in  Drake  v. 
also,  as  cases  less  pertinent.  Con-  Lake  Shore,  etc.,  supra. 
ley  V.  Chilcote,  25  O.  St.  320;  Rail- 


GAENISHEE  S    DISCLOSURE    IN    FOREIGN    .JURISDICTION. 


897 


may  not  fully  support  that  doctrine,  there  can  be  little  doubt 
that  the  position  is  sound.  Upon  princij)le,  it  seems  well 
grounded;  and  the  settled  rule  enounced  in  a  case  above  no- 
ticed '  is  one  which  any  court  may  consistently  follow.  Ah 
we  have  seen  that  there  is  no  rule  of  comity  generally  recog- 
nized so  as  to  establish  a  different  rule,  we  cannot  condemn 
any  state  for  following  this,  while  we  may  prefer  to  have  a 
state  voluntarily  respect  the  exemption  laws  of  all  the  rest 
as  a  matter  of  comity. 

There  can  be  no  universal  rule  now  laid  down  which  will 
give  the  wronged  wage-earning  cxemptiomst  any  other  rem- 
edv  than  the  two  above  suo-fi^ested  —  which  two  ought  to 
avail  him  everywhere. 

It  has  been  frequently  held  (or  rather,  the  doctrine  has  been 
favored)  that,  though  exemption  laws  do  not  create  vested 
rights  and  put  them  into  contracts,  and  though  they  have  no 
extraterritorial  authority,  yet  if  the  laws  of  two  states  both 
exempt  property  with  like  provisions,  mutual  comity  will  be 
observed.  The  court  of  one  state,  in  a  suit  between  citizen.s 
of  the  other,  v/ill  give  effect  to  the  exemption  laws  of  the 
other  state,  since  they  are  virtually  the  same  as  those  of  its 
own." 

It  has  been  held  that  a  garnishee  cannot  be  charged  to  pa)^ 
at  a  time  and  place  in  which  his  obligation  is  not  payable  to 
the  defendant;  that  is,  the  plaintiff  cannot  step  into  the  de- 
fendant's shoes  and  exact  of  the  garnishee  what  the  defendant 
himself  could  not  have  exacted ;  but  if  the  garnishee  is  a  resi- 
dent of  the  state  in  which  jurisdiction  has  been  acquired  over 
the  defendant,  he  cannot  resist  being  charged  on  the  ground 
that  his  debt  to  the  defendant  is  payable  elsewhere.  This 
seemingly  contradictory  holding,  as  briefly  stated  from  the 
syllabus  of  a  case,  will  be  clearer  after  the  statement  of  the 
facts.  An  attachment  suit  was  brought  against  a  non-resident 
lirm.  One  of  the  partners  appeared,  and  judgment  was  ren- 
dered against  the  firm.  A  railroad  company,  being  garnished, 
answered  that  it  was  indebted  to  one  of  the  defendants  resid- 

1  Broadstreet  V.  Clark,  supra.  Neb.  175;  Drake  v.  Railway  Co.,  69 

2Kestler  v.  Keru  (lud.),  28  N.  E.  Mich.  168;  Railroad  Co.  v.'  ISIaitby, 

726,  7^9;  Railroad  Co.  v.  Baker,  133  34  Kan.  125 ;  Pierce  v.  Railroad  Co., 

lud.  433 ;  Wright  v.  Railway  Co.,  19  36  Wis.  38a 
57 


898  EXEMPTING    ATTACHED    CHATTELS. 

ing  in  another  state,  and  that  the  indebtedness  was  payable 
there  and  not  elsewhere,  according  to  agreement  with  him 
when  he  was  contracted  with  as  an  employee  of  the  company; 
that  the  sum  due  him  was  for  wages  exem])t  in  his  state. 

The  garnishee,  though  discharged  in  the  trial  court,  was 
charged  by  the  supreme  court.  The  latter  said:  "The  au- 
thorities are  that  although  the  debtor  reside  in  another  state, 
if  the  debt  was  made  payable  within  the  state  where  it  is 
made  the  subject  of  garnishment,  such  non-residence  would  not 
avail ;  but  if  the  debt  is  payable  generally,  or  at  a  particular 
place  within  another  state,  and  the  debtor  reside  there,  then 
the  chose  in  action^  like  personal  property  in  his  hands  belong- 
ing to  the  defendant,  attaches  to  his  person  and  becomes  local 
with  him  in  that  state,  and  he  cannot  be  made  to  answer  for 
such  debt  in  another  state,  as  trustee  or  garnishee ;  and  these 
are  the  only  qualifications  of  the  principle.  It  is  only  neces- 
sary to  recur  to  the  situation  and  facts  of  this  case  to  show 
that  it  is  entirely  outside  of  this  principle. 

"  The  trustee  debtor  or  garnishee  in  this  case  is  a  corpora- 
tion and  resident  of  this  state;  and  the  defendant  in  the  at- 
tachment, whose  credit  or  chose  in  action  is  sought  to  be 
reached  by  the  garnishment,  has  submitted  to  the  jurisdiction 
of  the  court.     .     .     ."  ^ 

§  9.  Railroad  Company  Garnishee  —  Disclosure. 

A  railroad  company,  being  garnished  for  the  wages  of  its 
employee,  acknowledged  the  indebtedness  to  the  defendant  but 
did  not  state  that  the  last  month's  wages  were  exempt.  The 
defendant,  a  brakeman,  after  judgment  against  him  and  the 
garnishee,  in  favor  of  the  plaintiff,  brought  suit  against  the 
company  for  his  wages.  It  was  held  that  the  judgment  in  the 
garnishment  proceedings,  and  payment  by  the  garnishee  ac- 
cordingly, did  not  relieve  from  liability  to  pay  again  at  the 
suit  of  the  employee.  The  court  reasoned  that  as  the  defend- 
ant in  the  first  suit  was  not  a  party  to  the  auxiliary  garnish- 
ment proceedings —  was  not  notified  of  the  writ  of  garnish- 
ment—  the  statute  was  not  meant  to  confine  the  garnishee 
literally  to  its  requirement  that  he  answer  as  to  his  indebted- 
ness or  property  possession,  but  should  further  disclose  that 

1  ComL  Nat  Bank  v.  Chicago,  etc.  R.  Co.,  45  Wis.  173. 


RAILROAD   COMPANY    GARNISHEE  —  DISCLOSURE.  899 

the  property  or  debt  is  exempt,  if  it  be  so.'  The  brakeman, 
defendant  in  the  first  suit,  could  have  appeared  an<l  set  up  his 
exemption.  Tliis  would  have  saved  his  case  and  relieved  the 
garnishee  company  from  paying  twice.  He  was  in  default  — 
he  failed  to  answer,  though  cited  —  he  allowed  the  company 
(after  its  answer  as  garnishee  to  all  that  the  statute  required 
on  its  face)  to  pay  his  debt,  and  then  sued  them  and  made 
them  pay  again.  It  is  true  that  the  wage-earner's  debtor, 
when  garnished,  '*  cannot  deprive  him  of  it  by  his  neglect  to 
disclose  the  whole  matter  when  summoned  as  his  trustee;"^ 
but  when  the  statute  requires  the  garnishee  to  answer  as  to  in- 
debtedness merely,  it  is  yet  in  the  defendant's  power  to  set 
up  the  exemption  of  his  wages ;  and  he  ought  not  to  be  bene- 
fited by  his  own  laches  so  far  as  to  have  his  wages  paid  twice, 
when  he  neglects  to  answer.  If  the  statute  requires  the  gar- 
nishee to  explain  the  nature  of  the  indebtedness  and  to  disclose 
the  fact  that  the  credit  due  by  him  to  the  defendant  is  ex- 
empt, he  would  have  nobody  to  blame  if  made  to  pay  twice 
on  account  of  his  failure  so  to  answer.  It  is  always  true  that 
"  the  garnishee  cannot  deprive  him  [the  defendant]  of  it  [the 
exemption]  by  his  neglect  to  disclose  the  whole  matter  when 
summoned  as  his  trustee ;  "  for  the  defendant  can  prevent  such 
a  deprivation  by  answering  and  setting  up  his  rights.  The 
finding  against  the  garnishee  is  nothing  against  the  defendant 
till  the  judgment  against  himself:  so  the  garnishee  cannot  pos- 
sibly deprive  him  of  his  exemption,  unless  the  defendant  fails 
to  defend.  The  fact  of  the  defendant's  not  being  notified  of 
auxiliary  garnishment  proceedings  does  not  seem  to  bear  upon 
the  matter.  He  cannot  be  hurt  by  somebody's  acknowledg- 
ment of  indebtedness  to  him.' 

If  a  debtor  has  been  forced  to  pay  into  court,  by  garnish- 

1  Mo.  Pac.  R.  Co.  V.  Whipsker,  77  Texas  statute,  that  it  iviplictly  re- 
Tex.  17.  quires  disclosure  by  the  garnishee  of 

2  Lock  V.  Johnson,  36  Me.  464 ;  Rail-  the  nature  of  the  indebtedness  to 
way  V.  Ragland.  84  111.  37fj ;  Winter-  show  whether  it  is  exempt  or  not,  it 
field  V.  Railway,  29  Wis.  589  ;  Daniels  is  said,  in  Burke  v.  Hance,  76  Tex.  82  : 
V.  Man,  75  Me.  397 ;  Jones  v.  Tracy,  "  If  the  evidence  showed  that  the 
75  Pa.  St.  417,  cases  cited  to  sustain  judgment  was  rendered  for  the  seiz- 
the  above  quotation  by  the  court.  ure  of  exempt  property,  and  if  that 

3  Under  the  exposition  given  in  the  fact  was  known  to  the  garnishee,  it 
Missouri  Pacific  case,  supra,  of  the  would  be  his  duty  to  plead  it" 


900  EXEMPTING    ATTACHED    CnATTELS. 

ment  proceeding  against  him,  what  he  owed  the  defendant,  he 
is  acquitted  of  his  indebtedness  and  cannot  be  compelled  to 
pay  a,fi'ain  in  another  state  in  an  action  brought  by  the  former 
defendant  against  him  directly.  The  fact,  that  the  indebted- 
ness was  wages  due  by  the  garnishee  to  the  original  defend- 
ant, was  not  allowed  to  affect  the  question,  though  they  were 
exempt  in  the  state  where  the  latter  action  was  brought.  Plea 
of  payment  of  those  wages,  in  a  different  state,  under  order 
of  a  court  clothed  with  jurisdiction,  was  sustained.^  It  is  cer- 
tainly to  the  interest  of  the  garnishee  to  disclose  the  exempt 
character  of  what  is  sought  to  be  attached  in  his  hands,  and 
courts  have  said  it  is  a  duty.^ 

Wages  v/hich  accrue  after  the  debtor's  employer  has  been 
garnished  for  his  wages  due  are  not  covered  by  the  garnish- 
ment unless  there  be  statutory  provision  that  the  date  of  the 
trial  and  of  the  garnishee's  answer  then,  in  open  court,  shall 
be  the  time  of  fixing  what  credits  the  defendant  has  in  the 
garnishee's  hands.  Where  the  statute  makes  the  date  of  the 
service  upon  the  garnishee  the  time  of  determining  the  credits, 
none  subsequently  earned  would  be  covered.  Where  the  stat- 
ute, in  terras,  "exempts  all  wages  not  actually  due  at  the 
time  "  of  the  attachment  or  garnishment,  there  is  no  room  for 
construction.* 

§  10.  Non-residents,  as  to  Chattel  Exemption. 

It  has  been  asserted  as  a  rule,  that  "  if  the  statutes  do  not 
restrict  the  exemption  of  property,  for  the  payment  of  debt, 
to  residents,  or  to  some  other  particular  class  of  persons,  the 
courts  have  no  authority  to  make  such  restriction,  and  the 
statute  will  apply  to  all  classes,  rfon-residents  as  well  as  resi- 
dents." * 

1  Chicago  R.  Co.  v.  Moore  (Neb.),  quires  the  defendant's  credit  to  be 
48  N.  W.  475.  due    him   "  absolutely  and    without 

2  Chicago,  etc.  v.  Mason,  11  III.  App.  any  contingency."  Fellows  v.  Smith, 
525;  Chicago,  etc.  V.  Raglund,  84  111.  131  Mass.  363;  Mass.  Gen.  Stat., 
375.     If  a  raih-oad  company  be  gar-  ch.  142,  g§  24,  25,  26. 

nished  for  the  wages  of  an  employee  ^  House  v.   Bait.  &  O.  R.  Co.,   48 

who  has  funds  enough  of  the  corpo-  Md.  130;  Moore  v.   Heanej',   14  Md. 

ration  in  hand  to  meet  the  wages  due  563.    Compare  First.  N.  Bank  v.  Jag- 

him,  the  company,  on  disclosure  of  gers,  31  Md.  51. 

the  fact,  ought  not  to  be  charged  as  •*  Mo.  Pac.  R  Co.  v.  Maltby,  34  Kas. 

garnishee,  under  a  statute  that  re-  130 ;  Zimmerman  v.  Franke,  34  Kas, 


NON-KESIDENTS,  AS   TO    ClIA'Fl'EL   EXEMPTION.  901 

The  privilege  of  exemption  is  not  confined  to  residents 
under  all  the  statutes.  Non-residents  have  been  allowed  the 
same  rights  as  family-men  living  in  the  state.  They  must  file 
their  scheilule  and  comply  with  the  law  in  all  respects,  as  a 
resident.'  A  husband,  habituall}'  living  away  from  his  family, 
was  presumed  to  keep  his  domicile  with  thein  and  did  not  for- 
feit his  exemption  privilege.^ 

It  would  seem  that  the  reason  why  chattel  exemption  is 
often  made  the  privilege  of  residents  is  the  good  of  the  state, 
the  prevention  of  pauperism  and  the  quiet  of  families.  That 
reason  would  seem  inapplicable  when  a  resident  has  quit  his 
business  and  is  on  the  eve  of  taking  his  exempt  chattels,  ma- 
chinery, etc.,  out  of  the  state.  The  creditor  permanently 
located  ought  not  to  lose  his  claim  when  the  debtor  is 
about  to  cease  to  be  a  resident  —  going  out  of  the  state  with 
a  few  hundred  dollars'  worth  of  property.  But,  under  the 
statute  governing,  it  was  decided  that  a  debtor  might  take 
his  lumber-and-shingle-making  machinery  from  the  state,  de- 
spite the  creditor.' 

When  exemption  is  accorded  only  to  residents,  the  fact  of 
residence  must  be  proved,  and  the  onus  is  on  the  claimant.'*  A 
debtor  having  sold  his  stock  of  goods  and  being  paid  partly 
by  the  cancellation  of  a  debt  due  the  purchaser  and  the  bal- 
ance in  promissory  notes  —  which  notes,  together  with  his 
other  remaining  property,  did  not  exceed  in  value  the  amount 
allowed  in  his  state  as  exempt  —  was  justified  by  the  court  m 
the  transaction,  provided  he  was  a  resident  of  the  state  — 
residents  only  being  allowed  the  exemption  by  statute.  The 
goods  thus  sold  were  attached  by  other  creditors  of  the 
vendor,  and  the  purchaser  sued  the  sheriff  for  wrongful  at- 

650.  So,  following  the  ritZe,  it  was  held,  Mineral  Point  R.  Co.  v.  Barron,  83 

later,  that  the  wages  of  a  Nebraska  111.  365. 

head  of  family   are  not  subject  to  -Freehling  v.  Bresnahan,  61  Mich, 

garnishment  in  Kansas  —  both  states  540. 

exempting  wages.    Kan.  City,  etc.  R.  ^  "Wood  v.  Bresnahan,  63  Mich.  614, 

Co.  V.  Gough,  85  Kas.  1,  distinguish-  distinguishing  McHugh  v.  Curtis,  48 

ing  Burlington,  etc.  R.  Co.  v.  Thomp-  Mich.   262,  and   citing   O'Dounell  v. 

son,  31  Kas.  180.     See  Rice  v.  Nolan,  Segar,  25  Mich.  367,  as  intimating  the 

33  Kas.  28.  same  view. 

1  Menzie  v.  Kelly,  8  111.  App.  259 ;  *  Brinson  v.  Edwards  (Alu.),  10  So. 

219:  Carter  V.  Chambers,  79  Ala.  22a 


902 


EXEMPTING    ATTACHED   CHATTELS. 


tachment.  It  was  under  this  state  of  facts  that  the  court 
held,  as  above  stated,  that  residence  is  a  fact  not  presumed, 
and  which  therefore  must  be  proved.^ 

1  Brinson  v.  Edwards,  supra.  The 
court  said  of  the  vendor :  "  Avenger 
was  not  entitled  to  exemptions  unless 
he  was  a  resident  of  this  state.  Code 
1886,  §g  2507,  2511.  The  position  as- 
sumed by  the  plaintiff  was  that  the 
transaction  by  which  he  acquired  the 
stock  of  goods  could  not  be  vitiated 
by  the  fact  that  notes  were  given  for 
the  balance  of  the  purchase-price, 
and  that  they  were  made  payable  in 
the  future,  because  such  notes  be- 
came part  of  the  exemptions  allowed 
by  the  law  to  the  debtor.  To  the 
maintenance  of  this  position  proof  of 
the  debtor's  residence  in  this  state 
was  essential.  In  the  bill  of  sale 
Avenger  is  described  as  of  the  county 
of  Lowndes  and  state  of  Alabama, 
but  the  record  discloses  no  direct  ev- 
idence upon  the  question  of  his  resi- 
dence; and  it  is  not  shown  that  the 
fact  of  his  residence  in  Alabama  was 
conceded.  In  the  absence  of  an  ad- 
mission as  to  a  material  fact,  unless 
it  appears  that  such  fact  was  clearly 
shown,  and  that  it  was  not  contested, 
the  evidence  in  regard  thereto, 
though  clear  and  without  conflict, 
must  be  submitted  to  the  jury ;  and 
the  trial  court,  in  charging  the  jury, 
has  no  right  to  assume  the  existence 
of  such  fact  as  established.  1  Brick. 
Dig.,  p.  336.  ^  8 ;  3  Brick.  Dig.,  p.  114, 
§  118  e?  scq.  While  it  does  not  appear 
from  the  bill  of  exceptions  that  there 
was  any  dispute  in  regard  to  this  ma- 
terial fact,  yet  it  is  not  shown  that 
the  existence  thereof  was  conceded, 


or  that  the  defendant  in  any  way 
waived  the  right  to  take  advantage 
of  what  was  perhaps  an  inadvertence 
on  the  part  of  the  plaintiff  in  failing 
to  introduce  proof  on  the  subject.  In 
the  absence  of  any  such  showing,  the 
court  could  not  assume  that  such  fact 
was  admitted.  Carter  v.  Chambers, 
79  Ala.  223.  The  part  of  the  general 
charge  to  which  exception  was  re- 
served was  faulty  in  failing  to  sub- 
mit to  the  jury  the  question  of  the 
debtor's  residence.  Tlie  transaction 
there  hj'pothesized  could  not  as  a 
matter  of  law  be  pronounced  valid 
unless  the  fact  existed  which  would 
entitle  the  debtor  to  claim  exemp- 
tions. If  that  fact  did  not  exist,  and 
the  balance  of  the  purchase-price  for 
the  property  sold  was  paid  to  the 
debtor  in  cash,  such  circumstances 
could  have  been  looked  to  by  the  jury 
ip  determining  the  bona  fides  of  the 
transaction  (Levy  v.  Williams,  79 
Ala.  171) ;  and  if,  as  in  the  present 
case,  such  balance  was  secured  to  be 
paid  to  the  debtor  in  the  future,  there 
was  involved  such  a  hindering  and 
obstruction  of  the  other  creditors  as 
to  render  the  transaction  voidable  by 
them  (McDowell  v.  Steele,  87  Ala. 
493).  In  the  instruction  under  con- 
sideration, the  fact  of  Avenger's  res- 
idence in  this  state  should  have  been 
hypothesized.  The  failure  to  do  so 
renders  the  charge  erroneous.  For 
this  error  the  judgment  must  be  re- 
versed." 


CHAPTER  XXIX. 

EXEMPTION  DENIED  IN  CERTAIN  SUITS,  ETC. 


§  1.  Suits  Against  Partnerships. 

2.  Partner's  Siiare  Held  Liable. 

3.  Partner's  Share  Held  Exempti- 

ble. 

4.  Suits  for  Antecedent  Debts,  etc. 


§  5.  Suits  for  Purchase-money. 

6.  Actions  Ex  Delicto. 

7.  Fraudulent  Concealment. 

8.  Fraudulent  Sale. 

9.  Fraudulent  Assignment 


§  1.  Suits  Ag:.iinst  Partnerships. 

As  a  general  rule,  exein])tion  is  of  individual  — not  partner- 
ship-property. The  statutes  usually  speak  of  the  exemptionist 
in  the  singular,  as  the  debtor,  the  householder,  the  head  of 
a  family,  and  the  like.  When  members  of  certain  favored 
avocations  are  meant,  they  are  usually  designated  as  individ- 
uals ;  as,  the  farmer,  the  mechanic,  the  laborer.  If  the  pro|> 
erty  of  a  partnership  is  to  be  exempt,  the  statute  says  so  or 
ought  to  say  so.  There  are  cases  recognizing  the  exemption 
of  partnership  property,  but  ordinarily  the  statutes  favor  the 
individual  representing  a  family,  or  the  follower  of  an  avoca- 
tion; and  the  general  rule  is  that  partnership  propei'ty  is  not 
exempt  when  not  expressly  made  so.^ 

A  yoke  of  oxen  was  the  subject  of  the  contest  in  the  case 
above  cited.  Owned  by  insolvent  partners  in  business,  they 
were  claimed  as  exempt  under  a  statute  in  which  it  is  pro- 
vided respecting  the  debtor :  "  If  he  has  more  than  one  pair 
of  working  cattle,  he  may  select,"  etc.^  The  firm  had  a  yoke 
of  oxen  used  in  their  business,  which  were  held  not  exempt.* 
But  under  like  circumstances,  though  under  a  different  statute, 
it  was  said :  "  If  each  of  the  plaintiffs  had  owned  a  pair  of 

'  Thurlow  V.  Warren,  83  Me.  164. 
Judge  Virgin  said  for  tlie  court :  "  Al- 
though in  some  jurisdictions  the  con- 
trary view  is  taken,  still  the  great 
weight  of  deliberate  and  well-consid- 
ered cases  hold  that  individual  and 
not  partnership  property  is  exempt. 
Pond  V.  Kimball,  101  Mass.  105;  Bon- 


sall  V.  Cornley.  44  Pa.  St.  442 :  Guptil 
V.  McFee,  9  Kas.  30 ;  In  re  Handlin, 
3  Dill.  290:  Russell  v.  Lenuon.  89 
Wis.  573 ;  overruling  Oilman  v.  Will- 
iams, 7  Wis.  336." 

2  Me.  R.  S.,  ch.  81,  §  63,  clause  7. 

3  Thurlow  v.  Warren,  83  Me.  164. 


904  EXEMPTION    DENIED    IN    CERTAIN    SUITS,  ETC. 

horses,  both  teams  would  have  been  exempted."  And  further : 
"  It  would  be  an  obvious  perversion  of  tlie  statute  to  hold 
that  the  plaintiff  forfeited  its  protection  by  owning  but  a 
single  team  between  them,  used  for  the  common  support  of 
both."  1 

Under  a  statute  treating  the  beneficiary  of  the  exemption 
in  the  singular  as  most  statutes  do,  several  partners  claimed 
separate  allowances  from  partnership  property;  and,  in  deny- 
ing the  claims,  the  court  said :  "  It  appears  to  us  that  the 
statute  is  intended  to  apply  only  to  the  case  of  a  single  and 
individual  debtor.  The  exemption  which  it  gives  is  strictly 
personal.  The  statute  speaks  in  the  singular  number  through- 
out, unless  possibly  the  clause  as  to  fishermen  be  an  exemp- 
tion. Its  apparent  object  is  to  secure  to  the  debtor  the  means 
of  supporting  himself  and  his  family  by  following  his  trade 
or  handicraft  with  tools  belonging  to  himself.  It  also  provides 
that  his  family  are  to  be  secured  in  the  enjoyment  of  certain 
indispensable  comforts  and  necessaries  out  of  his  property. 
But  property  belonging  to  the  firm  cannot  be  said  to  belong 
to  either  partner  as  his  separate  property.  .  .  .  The  ex- 
emption, in  our  opinion,  is  several,  and  not  joint."  -  This 
reasoning  was  adopted  in  a  later  case  under  a  similar  statute.* 
And  where  exemption  to  a  certain  sum  is  granted  to  debtors, 
the  statute  does  not  thus  offer  exemption  to  partnerships.'* 

The  question  has  been  much  discussed,  but  it  seems  clear  that 
a  partner  cannot  claim  as  exempt  to  him,  property  wliich  he 
does  not  own.  The  firm  is  an  artificial  person  of  wliich  he  is 
a  part ;  but  its  property  is  not  his.  Therefore,  there  must  be 
statutory  authorization  before  he  can  rightfully  claim  any 
portion  of  the  partnership  property,  other  than  such  author- 
ization as  that  which  exempts  certain  property  to  individual 
debtor-owners.*     '*  No  one  of  the  members  of  a  copartnership 

1  Stewart  v.  Brown,  37  N.  Y.  350.  tion  is  desired  by  the  reader,  he  is  re- 

2  Pond  V.  Kimball,  svpra.  ferred  to  the  following  cases :  Gill  v. 
*  Cowan  V.  Creditors.  77  Cal.  403.  Latterman,  9  Lea,  381 ;  Spiro  v.  Pax- 
*Wise  V.  Frey,  7  Neb.  134;  White  ton,  3  Lea,  75  (S.  C,  31   Am.   Rep. 

V.  Heffner,   80    La.   Ann.    II,    1280;  630);   Gaylord  v.  Imhoff,  36  O.   St. 

Spiro  V.  Paxton.  3  Lea.  75;  Baker  v.  317  (S.  C,  20  Am.   Rep.  762);   Stat- 

Sheehan,  29  Minn.  235 ;  State  v.  Bow-  t.  Spencer,  G4  Mo.  350  (S.  G,  27  An>. 

den,  18  Fla.  17.  Rep.  244) ;  Bonsall  v.  Comly,  44  Pa. 

*If  further  pursuit  on  this  ques-  St.  442;    Holmes  v.  Winchester,  13S 


PARTNER  S    SHARE    HELD    LIABLE. 


905 


has  a  separate  property  in  the  partnership  efTects.  The  own- 
ership is  a  joint  one,  and  resides  in  the  firm.  The  partnership 
effects  are  ))riniarily  hablc  for  tlie  partnership  debts."  ^ 

§  2,  Partner's  Share  Held  Liable. 

There  is  not  uniformity  in  the  several  states  as  to  the  al- 
lowance of  exem})tion  to  individual  members  of  a  firm,  in 
partnership  property.  In  many,  the  privilege'is  decidedly  de- 
nied.' The  partner's  interest  is  his  portion  of  the  assets  after 
the  firm  debts  are  paid.  In  the  language  of  J  udge  Story : 
"  Joint  property  is  deemed  a  trust  fund,  primarily  to  be  ap- 
plied to  the  discharge  of  the  partnership  debts,  against  all 
persons  not  having  a  higher  equit}''.  A  long  series  of  author- 
ities has  establislied  this  equity  of  the  joint  creditors,  to  be 
worked  out  through  the  medium  of  the  partners;  that  is  to 
say,  the  partners  have  the  riglit  to  have  the  partnership  prop- 
erty first  a|)plied  to  the  discharge  of  the  partnership  debts, 
and  no  partner  has  any  right,  except  to  his  own  share  of  the 
residue.     .     .     ."  ^ 


Mass.  542 ;  Giovanni  v.  First  N.  Bank, 
55  Ala.  305  (S.  C,  28  Am.  Rep.  723) ; 
Elias  V.  Verdigo,  27  Cal.  418;  Short 
V.  McGruder,  22  Fed.  46.  Compare 
Stewart  v.  Brown,  37  N.  Y.  350; 
93  Am.  Dec.  578 ;  Blanchard  v.  Pas- 
chall,  68  Ga.  32 ;  45  Am.  Rep.  474 ; 
Skinner  v.  Shannan,  44  Mich.  86 ;  38 
Am.  Rep.  233  ;  McCoy  v.  Brennan,  61 
Mich.  362 ;  Evans  v.  Bryan,  95  N.  C. 
174:  59  Am.  Rep.  233. 

•Clegg  V.  Houston,  1  Phila.  353; 
Hoyt  V.  Hoyt,  69  la.  174. 

-  Schlapback  V.  Long,  90  Ala.  525  (in 
which  it  is  held  that,  if  husband  and 
wife  be  partners  in  business,  neither 
can  claim  ex"mption  from  the  part- 
nership jiroperty);  Weller  v.  Weller, 
131  Mass.  446;  Deeter  v.  Sellers,  102 
Ind.  458 ;  Henry  v.  Anderson,  77  Ind. 
.861  {see  State  v.  Read,  94  Ind.  103) ; 
Richardson  v.  Adler,  46  Ark.  48; 
Ward  V.  Hahn,  16  Minn.  167 ;  West 
V.  Ward,  26  Wis.  580:  Wright  v. 
Pratt,  31  Wis.  99 ;  Letchford  v.  Gary, 
53  Miss.  791 ;  McManus  v.  Campbell, 


37  Tex.  267 ;  Terry  v.  Berry,  13  Nev. 
515;  Rhodes  v.  Williams.  12  Nev.  20; 
Kingsley  v.  Kingsley,  39  Cal.  606 ; 
Amphlett  v.  Hibbard,  29  Mich.  298. 

3  Story's  Eq.  Jur.,  ii  1253.  As  was 
said  by  the  court,  through  Chief  Jus- 
tice Randall,  in  State  v.  Bowden, 
supra:  "  In  the  nature  of  pai'tner- 
ship,  the  property  of  the  firm  is  not 
the  individual  property  of  either  of 
its  members.  Neither  of  them  can 
of  right  use  the  property  for  the  paj'- 
ment  of  his  individual  debts.  The 
property  of  the  firm  is,  in  the  first  in- 
stance, assets  for  the  satisfaction  of 
the  debts  of  the  concern ;  and,  sec- 
ond!}', for  the  reimbursement  of  such 
members  of  it  as  ai-e  in  advance  of 
their  proper  share  of  the  capital  and 
debts.  Until  the  share  of  each  mem- 
ber is  ascertained  and  severed,  the 
assets  are  not  the  separate  property 
of  either,  but  the  joint  property  of 
all,  subject  to  the  above  conditions. 

'■  If  eitlier  partner  dies,  the  part- 
nership   property    survives    to    and 


900 


EXEMPTION   DENIED   IN   CERTAIN    SUITS,  ETC. 


Whether  a  partner  can  claim  exemption  relative  to  the 
merchandise  of  the  lirm  to  which  he  belongs  is  a  question 
which  has  been  likened  to  partnership  in  realty,  and  decided 
in  the  negative  by  parity  of  reasoning.^ 

Though  one  partner  can  bind  his  firm  by  mortgaging  part- 
nership property  to  secure  debts  of  the  firm,  the  benefit  of 
statutory  exemption  to  a  person  engaged  in  business  was  held 
not  applicable  to  a  partner  who  mortgaged  some  of  his  iirm's 
stock  in  trade  without  the  knowledge  of  his  copartner.- 

An  execution  issued  against  partnership  projerty  before 
the  dissolution  of  the  firm  owning  it  was  levied  on  the  share 
of  one  partner  after  the  dissolution;  and  it  was  held  that  he 
could  not  claim  exemption.^  When  the  execution  came  into 
the  sheriff's  hands,  the  claimant's  interest  was  in  common 
with  the  other  partner's,  and  could  not  be  appropriated,  even 
in  part,  for  his  family's  benefit.* 

The  interest   of  a  possessor  in  common  of  personal  prop- 


vests  in  the  survivor,  not  as  his  indi- 
vidual property  absolutely,  but  to  be 
applied  to  the  liquidation  of  the  lia- 
bilities of  the  copartnership  to  its 
creditors,  and  to  reimburse  advances 
by  its  members  before  distribution 
among  them  all,  in  proportion  to 
their  several  equities.     .    .     . 

"...  The  constitutional  and 
the  statutory  provisions  on  the  sub- 
ject of  exemptions  contemplate  that 
the  debtor  may  claim  an  exemption 
out  of  his  own  property.  Partner- 
ship assets  are  not  the  property  of 
either  of  the  partners.  Their  posses- 
sion and  ownership  for  partnership 
purposes,  not  for  private  purposes, 
go  to  the  survivor  if  one  of  them 
dies,  and  must  be  applied  to  the  pay- 
ment of  copartnership  debts  and  for 
distribution,  as  before  stated. 

"Property  exempted  from  levy 
and  sale  must  be  selected  so  as  to  be 
identified  and  set  apart  Partnership 
effects  of  a  mercantile  firm  are  con- 
stantly changing  in  respect  to  iden- 
tity, and  as  one  partner  cannot  take 
possession  of  the  goods  and  convert 


them  to  his  own  use  against  the  con- 
sent of  his  copartners,  but  the  goods 
remain  partners! lip  property  until 
sold,  a  '  selection '  of  such  goods  by 
one  partner  as  his  exempt  property 
would  be  a  fruitless  and  idle  cere- 
mony —  the  same  goods  still  remain- 
ing the  property  of  the  firm  for  part- 
nership purposes." 

1  Fingurhuth  v.  Lachman,  37  Mo. 
A  pp.  4S9,  decided  upon  the  authority 
of  a  homestead  case ;  Trowbridge  v. 
Cross,   117  111.  109;  R  S.,  oh.  53,  §  13. 

2  Harvey  v.  Ford,  83  Mich.  506 ;  47 
N.  W.  242 ;  Ho  well's  Stat.,  g  7G86. 

3  State  V.  Day  (lud.  App.),  29  N,  E. 
436 ;  Love  v.  Blair,  72  Ind.  281. 

4  Pond  V.  Kimball,  101  Mass.  105 ; 
Henry  v.  Anderson,  77  Ind.  061 ;  Dee- 
ter  V.  Sellers,  102  Ind.  458;  Smith  v. 
Harris,  76  Ind.  104.  Compare  Robin- 
son V.  Hughes,  117  Ind.  293,  and 
Goudy  V.  Werbe,  117  Ind.  154.  In 
State  V.  Day,  supra,  it  was  held  that  a 
firm  way  waive  their  equitable  liens 
in  favor  of  a  mortgage  lien  on  a  debt 
of  one  partner.  See  Purple  v.  Far- 
riugtou,  119  Ind.  164. 


paktner's  share  held  exemptible.  907 

erty  has  been  held  exempt,  '•^  where  the  2>08session  as  v}ellas  title 
is  severaiy  Distinction  Avas  drawn  between  such  interest 
and  partnership  interest,  in  relation  to  exemption  —  the  court 
remarking  that  if  the  articles  levied  upon  were  partnership 
proi)erty  for  a  partnership  debt,  there  would  be  a  striking 
analogy  between  the  case  under  consideration  and  one  pre- 
viously decided  in  which  exemption  was  denied.' 

§  3.  Partner's  Sliare  Held  Exemptible. 

The  question:  Whether,  if  a  portion  of  the  personal  prop- 
erty (included  in  the  schedule  of  the  applicant  for  exemption) 
belonged  to  the  firm  of  which  he  was  a  member  at  the  time 
it  was  levied  upon,  and  no  severance  had  been  made  b}'  the 
partners  at  the  time  —  whether  he  is  entitled  toan  exemj^tion 
in  such  portion?  was  judicially  answered  in  the  alfirmative,  in 
a  state  where  it  came  up  as  new.  The  court  remarked  that, 
"in  fact  and  in  law,  the  individual  members  of  the  firm  are 
the  real  owners  of  the  partnership  property.  And  although 
the  law  directs  how  debts  shall  be  paid,  it  never  loses  sight 
of  the  fact  that  a  partnership  is  made  up  of  individuals  who  own 
the  assets.  It  is  nevertheless  true  that  in  the  absence  of  any 
legal  provision  giving  a  different  direction  to  the  disposition 
of  the  assets  of  a  firm,  they  would  have  to  be  paid  out  as 

1  Heckle  v.  Grewe,  125  111.  58;  26  117    III.    109;  Simpson   v.  Leech,  86 

111.  App.    839  {disfivguishiug  Trow-  111.  28G ;  Bupp  v.  Fox.  G3  111.  540.     Its 

bridge  v.  Cross,  1 17  111.  109) ;  Conway  like   operation   ujjon  personal   prop- 

V.  Wilson,  44  N.  J.  Eq.  457.  In  Illinois  erty,  to  bar  such   claim  as   is  here 

a  partner  cannot  have  his  exemption  made,  is  clearly  recognized  in  Heckle 

from  the  property  of  his  firm,  before  v.  Grewe,  26  111.  App.  339,  and  same 

or  after  the  dissolution  of  the  part-  case  in  125  111.  58:  and  the  precise 

nership,  as  against  the  creditors  of  question  here  presented  is  decided  in 

the  firm.     In  a  case  involving  this  the  case  of  Croft  Brothers,  8  Biss. 

rule,   the  court  said :  "  Firm  assets  188,  and  in  Ex  parte    Hopkins,    104 

are  a  trust  fund  for  the  payment  of  Ind.  157.     We  are  unable  to  see  how 

creditors.     The  partners  individually  a  dissolution  of  the  partnership,  or 

can  have  no  absolute  property  in  it  the  consent  of  a  i)artner,  before  the 

or  in  anj^  specific  part  of  it  until  the  firm    creditoi"s     are    satisfied,     can 

creditors    are    fully  satisfied.    This  operate  to  give  a  partner  any  greater 

elementary  doctrine  of    the  law  of  right  to  the  firm  assets  or  anj'  part 

partnership   has    been   held    to  bar  thereof,    as    against     the    creditors, 

anaolgous    claims     of    dower    and  than    he    would     otherwise    have." 

homestead  exemption  in  real  estate  Wills  v.    Downs,    38    111.  App.  269, 

of    the  firm     Trowbridge  v.  Cross,  Pleasants,  J. 


90S  EXEMPTION    DENIED    IN    CERTAIN    SUITS,  ETC. 

claimed.  But  here  is  interposed  between  this  disposition  of 
the  ])roperty  which  an  individual  may  have  in  a  partnership, 
another  overriding  ami  superior  right  thereto  which  no  court 
or  ministerial  officer  can  disregard,  and  no  officer  has  the  juris- 
diction or  authority  to  seize  and  sell,  except  for  certain  speci- 
fied debts  in  which  partnership  debts  are  not  included."  ^ 

Another  view  has  been  taken  of  the  question.  It  has  been 
said,  even  judicially  decided,  that  if  the  partners  consent  that 
one  of  their  members  may  claim  exemption  in  the  partnership 
assets,  he  may  legally  have  it  accorded  to  him,  though  there 
be  outstandino-  debts.  The  creditors  are  declared  to  be  with- 
out  right  to  complain,  since  their  attitude  is  like  that  which 
creditors  hold  towards  an  individual  debtor.  To  quote  from 
an  opinion  so  declaring:  "  The  separate  partners  have  a  right, 
in  order  to  their  own  exoneration,  to  have  the  joint  prop- 
erty applied  to  the  joint  debts,  and  in  its  exercise  the  joint 
creditors  reap  the  benefits;  but  no  such  equity  resides  in  the 
creditors,  as  such,  to  have  their  demands  first  satisfied.  AVhen 
the  partner  refuses  to  avail  himself  of  this  equitable  right,  and 
consents  to  an  ajjpropriation  of  the  common  propert}''  to  the 
personal  and  separate  use  of  one  of  them,  the  result  is  the 
same  as  if  there  Avere  no  joint  liabilities,  and  each  had  a  perfect 
right  to  his  own  share. 

"Putting  the  partnership  creditors  out  of  the  way,  there 
can  be  no  legal  obstacle  to  what  is  in  effect  an  actual  partition 
between  them  of  so  much  as  each  receives  as  his  exemption. 
Why  should  it  not  be  so?  The  joint  creditors  have  no  more 
rights  to  shift  the  burden  from  the  joint,  and  put  it  upon  the 
separate,  property,  to  the  injury  of  the  individual  creditor, 
than  he  hns  to  do  the  reverse  and  put  the  burden  upon  the 
joint  property,  to  the  injury  of  the  former.  Upon  principle, 
then,  we  uphold  and  abide  by  the  ruling  heretofore  made,  as 
resting  upon  sound  reason."  ^ 

Distinction  is  drawn  between  judgment  against  an  individ- 
ual partner  and  judgment  against  the  firm.  While  in  the 
latter  case  exemption  is  not  allowable  in  a  given  state,  it  may 

1  Blanchard  v.  Paschal,  68  Ga,  33,  som,  90  N.  C.  !)0 ;  O'Gorman  v.  Fink, 
54.  57   Wis.  649 ;  46  Am.  Rep.  5S ;  First 

2  Scott  V.  Kenan,  94  N.  C.  296,  N.  Bank  v.  Hackett,  61  Wis.  335.  34S; 
Smith,  C.  J.,  approving  Allen  v.  Gris-  Severson  v.  Porter,  73  Wis.  70,  77. 


SUITS    FOR    ANTECEDENT    DEBTS,  ETC.  909 

bo  in  the  foniicr.  That  is  to  say,  an  individual  member  of  a 
partnership  who  is  a  judgment  debtor  may  daim  exemption 
out  of  his  share  of  the  partnership  effects  in  states  where  he 
could  not  if  the  judgment  were  against  the  partnership.'  In 
some  states,  after  the  dissolution  of  a  partnership  with  the 
lien  of  a  levy  resting  upon  the  firm  property,  one  of  the  late 
members  may  claim  exemption  in  his  own  behalf."  And  it  is 
said  that  a  debtor  may  put  himself  in  position  to  claim  ex- 
emption after  the  lien  has  attached,  though  he  had  no  right 
to  exemption  when  it  attached.'  The  lien  upon  the  partner- 
ship property  must  be  a  general  one,  subject  to  exemption; 
that  is,  a  lien  on  the  non-exempt  portion,  if  any  has  im- 
munity; for  a  member  of  a  late  firm  could  not  dislodge  a 
lien  upon  its  partnership  property  without  satisfying  it. 

A  woman,  as  one  of  a  firm,  sued  a  sheriff  for  selling  part- 
nership goods  under  execution  after  she  had  notified  him  of 
her  claim.  The  fact  that  she  had  drawn  a  thousand  dollars 
from  the  assets  of  the  firm  just  before  the  levy  was  not 
deemed  by  the  court  an  impediment  to  her  claim,  since  it  was 
a  matter  between  the  partners.  The  amount  drawn  was  four 
times  the  statutory  exemption  claimable  by  each  partner  from 
the  stock  in  trade.  By  the  statute  each  member  could  claim 
$250.*  This  claim  may  be  asserted  by  eacli  partner  individ- 
ually; it  is  not  necessary  that  all  should  join.  And  he  can 
enforce  it,  though  no  other  member  of  the  firm  is  in  court  or 
has  claimed  in  any  \yay.^ 

§  4.  Suits  for  Antecedent  Debts,  etc. 

This  kind  of  suit  has  been  treated  heretofore;^  and  as  chat- 
tels do  not  differ  from  homesteads,  as  to  the  principles  in- 
volved, there  need  be  no  repetition  here.     Those  principles 

iWise  V.   Frey,   7  Neb.  134;   Ser-  These  two  last   stated   points  were 

vanti  V.  Lusk,  43  Cal.  238 ;  Newtou  v.  made  by  Judge  Crunipacker  in  his 

Howe,  9  Am.  Rep.  616.  dissenting  opinion  in  State  v.   Day 

-Russell  V.  Lennon,  39  Wis.  570;  (lud.  App.),  29  N.  E.  436. 

Skinner  v.   Shannon,   44  Mich.   86;  <  McCoy  v.  Brennan,  61  Mich.  362; 

Blauchard    v.   Paschal,   68    Ga.   32;  AVaite    v.   Mathews,   50    Mich.   393; 

Stewart  V.  Brown,  37  N.  Y.  350.  Skinner  v.  Shannon,  44  Mich.  86. 

3  Watson  V.  Simpson,  5  Ala.  233 ;  *  lb.;  Russell  v.  Lennon,  39  Wis. 

Letchford  v.  Gary,  52  Miss.  791;  Mc-  570;  Newton  v.  Howe,  29  Wis.  531. 

Manus    v.    Campbell,    37    Tex.    207.  >^  A)ite,  p.  2'iQ  et  scq. 


910  EXEMPTION    DENIED   IN    CERTAIN    SUITS,  ETC. 

have  been  pointedly  applied  to  chattel  exemption.  It  has  been 
held  unconstitutional  to  exempt  personal  property  from  the 
liability  already  upon  it.  However  great  or  little  the  amount 
exempted,  it  is  held  that  it  would  impair  the  contract  by 
Avhich  the  antecedent  debt  was  created.^ 

Personalty  is  generally  liable,  without  exemption,  for  taxes ; ' 
and  less  generally  so  for  rents.  Though  property  selected  by 
the  debtor  and  set  apart  by  the  court  be  free  from  liability 
for  rent,  yet  a  distress  warrant  against  it  will  be  effectual  in 
the  absence  of  any  proof  of  the  exempt  character.''  Kents  of 
property  dedicated  to  public  use  take  the  character  of  the 
property  itself,  as  to  exemption.* 

§  5.  Suits  for  Purchase-money. 

Personal  property  being  by  statute  made  liable  for  pur- 
chase-money except  when  in  the  hands  of  an  innocent  third 
person  who  acquired  without  notice,^  is  not  subjected  to  a  lien 
by  such  statute.  Priorities  among  contending  creditors  are 
not  regulated  by  it.  The  court,  in  construing  the  statute,  said 
that  the  evident  intent  of  the  legislature  "  was  to  take  out  of 
the  exemptions  of  the  original  act  such  of  his  personal  prop- 
erty as  otherwise  might  have  been  exemjit  from  attachment 
or  execution,  when  the  execution  is  on  a  judgment  for  the  pur- 
chase-money of  such  personal  property.  It  was  not  the  inten- 
tion of  the  legislature  to  impress  upon  the  personal  property 
a  lien  in  favor  of  the  vendor  of  such  property,  but  to  provide 
that  if,  upon  execution  issued  upon  a  judgment  for  the  pur- 
chase-money, such  property  was  found  still  the  property  of 
the  execution  debtor,  he  should  not  be  permitted  to  claim  and 
hold  it  as  exempt  from  sale  as  against  the  vendor's  execution 
for  the  purchase-money."  ^ 

1  Johnson  v.  Fletcher,  54  Miss.  628 ;  *  Kline  v.  Ascension  Parish,  33  La. 

Carlton  v.  Watts,  83  N.  C.  212 ;  John-  Ann.  563. 

son    V.    Dobbs,    69    Ga.   605 ;     ante,  5  Mo.  R.  S.  (1879),  §  2353. 

pp.  677-680.  6  Straus  v.  Rothan,   103    Mo.   261, 

'■^  Oliver  V.  White,  18  S.  C.  285 ;  Ran-  cifmg  Norris  v.  Brunswick,   73  Mo. 

soin  V.  Duff,  60  Miss.  901.  257 ;   Haworth   v.  Franklin,   74  Mo. 

3  Shiver  v.  Williams,  85  Ga.  583;  106;  Parker  v.  Rhodes,  79   Mo.  88; 

Ga.  Code,  §  2040.   In  Georgia,  exemp-  and  overruling  Comfort  v.  Mason,  96 

tiou   is  by  the  ordinary.     Sasser  v.  Mo.  127 ;  Bolckow  Co.  v.  Turner,  23 

Roberts,  68  Ga.  253.  Mo.  App.  103,  and  Boyd  v.  Furniture 

Co.,  38  Mo.  App.  210. 


SDITS    FOR   PURCHASE-MONET.  911 

A  chattel  is  liable  for  its  purcliase  price,  "vvhetlicr  security 
for  the  debt  has  been  taken  or  not;'  and  whether  or  not 
judgment  on  a  note  given  for  the  price  has  been  rendered  in 
favor  of  an  assignee  of  the  note.- 

Must  the  fact  that  the  note  was  given  for  purchase-money 
appear  on  its  face?  or  of  record?  May  it  be  established  by 
parol?  It  has  been  held,  where  such  a  note  did  not  show  its 
consideration,  that  parol  evidence  Avas  suflicicnt  to  show  that 
it  represented  the  purchase-money.*  And  where  there  was 
nothing  of  record  to  show  the  consideration  of  the  note,  the 
court  indorsed  upon  the  judgment  that  the  purchase-money 
for  specified  property  was  represented  by  the  note.  This  was 
done  under  statutory  authorization,*  and  Avould  not  be  other- 
wise done,  it  is  apprehended. 

Things  bought  with  borrowed  money,  borrowed  for  the 
avowed  purpose  of  buying  them,  are  not  exempt  as  against 
the  lender.  A  horse  and  harness  w-ere  bought  with  such 
money,  and  were  claimed  as  exempt  when  the  lenders  sought 
to  execute  their  judgment  against  the  borrower  by  levying 
upon  them.  The  suit  was  for  purchase-money  and  therefore 
the  things  purchased  with  it  were  not  exempt.-^  There  may 
be  found  exceptional  states  in  which  this  rule,  as  to  borrowed 
money,  is  not  applied,  but  the  rule  is  general  that  chattels 
are  not  exemiit  against  a  judgment  for  their  price  w'hile  they 
remain  in  the  hands  of  the  first  purchaser."  When  the  price 
and  indebtedness  are  evidenced  by  a  note,  the  holder  may  re- 
cover, unbarred  by  exemption,  though  he  be  not  the  original 
lender  and  obligee.'' 

1  Roberts  v.  McGur,  82  Mich.  231 ;  SHoulehan  v.  I^asaler,  73  Wis.  557; 
46  N.  W.  370.  Wis.  R  S.,  §  2C82,  cl.  20. 

2  State   V.   Ovahood.   27  Mo.  App.  « State  v.   Orahooa,   27  Mo.   App. 
496,  in  which  the  point  is  made  to  496. 

rest  on  homestead  decisions  relative  'lb.  The  court  said,  through  Judge 

to  assignment    of    purchase-money  Thompson :    "  It  cannot,  we  appre- 

notes.  hend,  be  contended  that  the  right  to 

^  Tb.  subject  the  chattel  to  the  payment 

<  Green  v.  Spann.  25  S.  C.  273 ;  So.  of  the  indebtedness  for  its  purchase 

Car.  Gen.  Stat.,  ^  2001.     Difference  is  price  is  waived  by  the  vendor  by  the 

made,   as  to  exemption,  between  a  mere  fact  of  taking  a  promissory 

debt  for  necessary  supplies  to  a  fam-  note  from  the  purcliaser.     So  far  as 

ily,  and  one  for  groceries  sold  to  the  we  know,  none  of  the  decisions  relat- 

keeper  of  a  boarding-house.  Lenhoff  ing  to  the  subject  go  so  far.     If  we 

V.  Fisher  (Neb.),  48  N.  W.  821.  are  right  in  this  conclusion,  the  ex- 


912  EXEMPTION    DENIED    IN    CEETAIN    SUITS,  ETC. 

Though  the  note  be  received  as  payment  and  satisfaction  of 
the  price  of  the  chattel  sold,  a  suit  upon  it  is  for  purchase- 
money,  and  it  therefore  is  not  obstructed  by  exemption.^ 

An  act  expressly  providing  that  no  property  shall  be  ex- 
empt from  sale  for  a  debt  incurred  for  its  purchase  or  im- 
provement was  held  to  have  no  reference  to  personal  property. 
The  court  said  that  the  non-exemption  "  does  not  apply  nat- 
urally to  personal  property,  but  is  more  properly  applicable 
to  real  property.  .  .  .  Notwithstanding  the  general 
words  of  the  section  are  comprehensive  enough  to  embrace 
personal  property,  we  are  of  opinion  that  such  property  is  not 
within  the  intendment  of  the  section,  and  that  it  is  to  be  con- 
sidered as  applying  to  the  homestead  exemption  alone."  ^ 

In  a  jurisdiction  which  holds  chattels  bound  for  the  purchase 
price  just  as  land  is,'  it  was  yet  held  that  a  sewing  machine, 
bought  but  not  wholly  paid  for,  was  exempt  as  against  the 
seller  in  a  suit  on  the  note  given  for  the  purchase-money.* 

The  purchaser  of  a  horse  gave  his  note  to  a  creditor  of  the 
seller,  who  credited  it  to  a  land  debt  due  him  by  the  seller  of 
the  horse.  The  maker  being  sued  on  the  note,  it  was  held 
that  the  consideration  of  the  note  was,  not  the  horse,  but  the 
extinguishment  of  the  land  debt.     The  horse,  having  been  set 

ception  contained  in  section  2353,  Re-  obtained  judgment,  and  levied  upon 

vised  Statutes,  creates  a  privilege  or  the  piano.     Replevin   was  sued  out 

incident  which  adheres  to  the  note,  against  the  officer  by  the  person  who 

which   is  tlie  evidence  of  the  debt,  bought  the  instrument  of  the  daugh- 

.     .     .     In  California  and  Georgia  it  ter,  and  from  whom  the  officer  had 

is  held  that  the  assignment  of  a  note  taken    it.     Chief  Justice   Sherwood 

given  for  purchase-money  of  a  home-  said,   in    deciding:    "The    piano  of 

stead  carries  with  it  the  preference  plaintiff  was  not  subject  to  the  levy, 

of  the  vendor  over  the  right  of  home-  .     .     .     Tlie  act  of  March  31.   1874, 

stead  of  the  vendee.    Dillon  v.  Byrne,  does  not  apply  to  a  case  of  this  kind. 

5  Cal.  455  :  Berrell  v.   Schie,   9  Cal.  It  does  not  go  beyond,  nor  was  it  in- 

104 ;    Sponger  v.    Compton,    54  Ga.  tended  to  go  beyond,  the  purchaser. 

355;    WofTord    v.    Gaynes,    53    Ga.  Norris  v.   Brunswick,   73   Mo.   256." 

485."    The  court  further  cited  Ed-  Haworth  v.  Franklin,  74  Mo.  106. 

wards  v,    Edwards,  24  O.    St.    202;  i  Rogers  v.  Brackett,  34  Minn.  279 ; 

Sloan    V.    Campbell,    71     Mo.     387;  Gen.  St.  1878  (of  Minn.),  ch.  G6,  §  311. 

Adams  v.  Cowherd,  30  Mo.  458.     A  2\Vells  v.  Lily,  86  III.  317;  Howard 

lady  gave  her  note  for  a  piano,  gave  v.  Lakin,  88  111.  36 ;  111.  Rev.  Stat  of 

the  piano  to  her  daughter,  and  the  1874,  p.  497. 

daughter  sold  it  to  a  third  person.  ^  Roberts  v.  McGur,  82  Mich,  221. 

The  holder  of  the  note  transferred  it,  '•Singer  Manufacturing  Co.  v.  Cul- 

and  the  transferee  sued  the  maker,  loton  (Mich.),  51  N.  W.  687. 


ACTIONS    EX    DELICTO.  913 

apart  as  exempt  to  its  purchaser,  was  not  liable  for  the  land 
debt;  ^  but  the  note  for  the  horse  was  the  one  sued  upon,  and, 
as  the  maker  had  not  paid  for  the  animal,  should  he  have  been 
protected?  The  payee  took  the  note  as  a  payment  on  the 
land;  but  if  he  could  get  nothing  for  it,  he  is  a  loser  and  the 
maker  has  gained  a  horse. 

Claiming  purchase-money  against  mortgage  recorded  hefore 
levy:  A  mortgage  recorded  before  attachment  is  laid  ranks 
higher  than  the  attachment  lien,  even  though  the  latter  is  to 
secure  the  purchase  price :  provided  the  mortgage  was  taken 
without  notice  that  the  mortgagor  had  not  paid  for  the  chat- 
tels mortgaged.  This  is  the  rule  where  the  statute  excepts 
personal  property  from  exemption  against  a  claim  for  its 
purchase  price  but  does  not  create  a  lien  in  favor  of  such 
claim.  The  exemption  has  no  effect  on  such  claim ;  so,  when 
the  property  has  been  sold  before  payment,  and  has  passed 
into  third  hands  without  notice,  the  original  vendor,  without 
recorded  lien,  cannot  follow  it  to  obtain  the  purchase-money. 
It  is  queried  by  the  court  whether  a  mortgagee,  apprised  of 
the  fact  that  the  mortgagor  has  not  paid  the  purchase-money 
at  the  time  of  the  creation  of  the  debt  to  be  secured,  may  be 
regarded  as  a  lienor  taking  rank  in  the  order  of  time,  or 
whether  he  is  to  be  treated  as  a  purchaser  with  notice.^ 

§  6.  Actions  Ex  Delicto. 

The  general  rule  is  that  there  is  no  exemption  when  the 
judgment  and  execution  are  for  tort.  And  it  is  maintained, 
in  the  later  decisions  cited  in  the  next  note,  that  a  writ  of 
execution  on  a  judgment  to  recover  land  is  not  subject  to 
a  claim  for  personal  ])roperty  exemption,  because  it  is  not ''  an 
execution  for  the  collection  of  debt."  This  suggests  a  broader 
distinction  than  that  between  tort  and  contract.^ 

1  Washington  v.  Cartvvright,  65  Ga.  ris  v.  Brunswick,  73  Mo.   258.     Sec 

177;  Ga.  Code,  ^§  2040  e^  seg.  Haworth  v.  Franklin,  74  Mo.    106: 

'^  Corning  v,  Rinehart  Medicine  Co.,  Greely  v.  Reading,  74  Mo.  309 ;  Wool- 

46  Mo.  App.  16,  following  Straus  v.  folk  v.   Kemper,  31   Mo.  App.  421  : 

Sole  Leather  Co.  (Mo.),  14  S.  W.  940,  Range  Co.  v.  Alexe,  28  Mo.  App.  184 ; 

and  distinguishing  Boyd  v.  Furni-  Petring  v.  Drygoods  Co.,  90  Mo.  649. 

ture  Co.,  38  Mo.  App.  210;  Bolckow  See  the  construed  statute.  Mo.  Rev. 

Milling  Co.  v.  Turner,  23  Mo.  App.  Stat.  (1889),  §  4914. 

103;    State  v.   Mason,   96   Mo.    127;  n^incent  v.  The  State,  74  Ala.  274 ; 

Parker  v.  Rhodes,  79  Mo.  88;  Nor-  Williams   v.  Bovvden,  69  Ala.   433; 
58 


914  EXEMPTION    DENIED    IN    OEKTAIN    SUITS,  ETC. 

A  claim  for  tort  is  not  a  claim  for  debt.  There  is  no  ascer- 
tained indebtedness;  nothing  that  the  law  will  recognize  as  an 
existing  debt.  Statutory  authorizations  of  attachment  for 
debt  do  not  include  attachment  for  tort  unless  so  expressed.* 

There  is  no  debt  till  judgment.-  And  if  the  judgment  show  on 
its  face  that  it  is  for  tort,  it  is  held  that  no  exemption  can  be 
pleaded  against  it  successfully.  The  sheriff  may  go  on  and  sell 
regardless  of  the  defendant's  notice  and  claim  of  exeiwption, 
when  the  judgment  shows  this.'  But  if  it  does  not  show  that 
it  is  for  tort,  but  is  merely  a  money  judgment  so  far  as  its 
face  discloses  (though  the  record  may  show  it  for  tort),  the 
officer  cannot  disregard  the  claim  bf  exemption  with  impu- 
nity. He  cannot  go  behind  the  decree  itself  and  see  that  it 
was  rendered  for  tort,  and  then  decide  himself  upon  the  ex- 
emption claim.*  But  it  is  held  that  if  the  judgment  is  for  a 
tax,  yet  does  not  show  that  fact,  the  sheriff  may  sell  and  the 
debtor  cannot  claim  exemption.^ 

Judgments  on  penalties  cannot  be  met  by  the  plea  of  ex- 
emption given  by  law  against  judgments  for  debt.^  In  an 
action  on  both  tort  and  contract,  the  defendant  may  treat  the 
suit  as  on  the  latter  and  may  claim  exemption.^  If  the  two 
causes  of  action  can  be  separated  as  to  the  proceeds,  the  de- 
fendant's claim  should  apply  to  those  from  contract  but  not 
to  those  from  tort;^  for  the  rule  is  recognized  generally,  all 
over  the  country,  that  from  judgments  for  torts  there  is  no 
escape  for  defendants  by  claims  of  exemption.^ 

Stuckey   v.   McGibbon  (Ala.),  8  So.  5  Oliver  v.  White,  18  S.  C.  235. 

379  {limiting  Clingman  v.  Kemp,  57  ^willianis  v.  Bowden,  69  Ala.  433; 

Ala,  195);   Ex  parte  Barnes,  84:  A\a,  Meredith  v.   Holmes,   68    Ala.    190; 

540 ;  Meredith  v.  Holmes,  68  Ala.  190 ;  Cason   v.    Bone,    43    Ark.    17.      See 

Penton  v.  Diamond  (Ala.),  9  So.  175.  St.   Louis   v.  Hart,  38  Ark.  112,   on 

1  Holcomb  V.  Winchester,  52  Ct  waiving  action  of  tort  and  taking 
447;  S.  C,  53  Am.  Rep.  G08 ;  Get-  another.  In  this  case  it  was  held 
chell  V.  Chase,  37  N.  H.  106 ;  Foster  that  a  judgment  for  "  use  and  occu- 
V.  Dudley,  30  N.  H.  463 ;  Cook  v.  pation "  is  on  a  contract  —  not  ex 
Wathall,  20  Ala.  334 :  Victor  v.  Hart-  delicto;  so  exemption  was  allowed, 
ford  Ins.  Co.,  33  la.  210.  ^Ries  v.  McClatchey,  128  Ind.  125; 

2  lb. ;  Thayer  v.  Southwick.  8  Gray,  27  N.  E.  349 ;  Hickox  v.  Fay,  36  Barb. 
229 ;  Kellogg  v.  Schuyler.  2  Denio,  9 ;  Holmes  v.  Farris,  63  Me.  318. 

73;  Cranch  v.  Gridley.  6  Hill,  250.  »  Keller  v.  McMahan,  77  Ind.  62. 

3  McLaren  v.  Anderson,  81  Ala.  106.        9De  Hart  v.  Haun,  126  Ind.  378; 
*Ib.;  Block  v.  Bragg,  68  Ala.  291 ;    26  N.  Fi.  61. 

Block  V.  George,  70  Ala.  409. 


ACTIONS    EX    DELICTO. 


915 


There  is  no  exemption  when  the  debt  is  for  property  ob- 
tained by  false  pretenses.' 

Tort  hy  wife:  Exemption  not  holding  against  a  judgment 
for  the  debtor's  tort,  would  it  hold  against  such  judgment 
when  the  tort  was  committed  by  his  wife?  At  common  law 
it  seems  that  a  husband  is  answerable  for  the  torts  of  his  wife, 
and  therefore  it  has  been  thought  that  statutory  relief  is  nec- 
essary to  save  him  from  the  loss  of  his  exemption  right  by 
reason  of  her  tortious  acts,  when  execution  is  pendmg  against 
him  on  a  judgment  therefor.^ 

Costs:  Costs  follow  the  condition  of  the  suit,  so  that  exemp- 
tion may  be  interposed  against  their  forced  collection  w^ien 
contract  was  the  ground  of  the  action,  in  some  states.  When 
the  judgment  is  for  tort,  the  costs  may  be  collected  with  the 
main  demand,  unhindered.  There  is  no  reason  why  court  of- 
ficers should  not  be  paid,  whatever  the  character  of  the  cause, 
but  the  distinction  above  mentioned  prevails  extensively,  and 
ma}"  well  be  illustrated  by  the  subjoined  note  relative  to  the 
statutes  and  decisions  of  one  state.^ 


1  Hall  V.  Harris  (S.  D.),  46  N.  W. 
931 ;  Comp.  Laws  Dak.,  §  5139. 

2McCabe  v.  Berge,  89  Ind.  235; 
Howk,  J.,  for  the  court :  "  The  com- 
mon-law liability  of  the  husband  for 
the  torts  of  his  wife  was  merely  an 
incident  of  the  marriage  relation  or 
status.  Ball  v.  Bennett,  21  Ind,  427 ; 
Choen  v.  Porter,  66  Ind.  194 ;  Stock- 
well  V.  Thomas,  76  Ind.  506 ;  Cooley 
on  Torts,  113.  It  cannot  be  said,  there- 
fore, that  the  appellant  could  law- 
fully claim  any  of  his  property  as 
exempt  from  sale  on  execution  issued 
on  the  judgment  recovered  against 
Mmforthetort  of  hiswife.  ,  ,  .  We 
direct  attention  to  section  5120,  R  S. 
1881,  in  force  September  19,  1881, 
wherein  it  is  provided  as  follows : 
'  Married  women,  without  reference  to 
their  ages,  shall  be  liable  for  torts  com- 
mitted by  them  ;  and  an  action  may 
be  prosecuted  against  them  for  torts 
committed,  as  if  unmarried.  Hus- 
bands shall  not  be  liable  for  the  con- 


tracts or  the  torts  of  their  wives.'  " 
Above  this,  the  court  had  said :  "  For 
aught  that  appears  to  the  contrary, 
the  judgment  in  the  slander  suit 
against  the  appellant,  as  well  as 
against  his  wife,  was  for  damages  re- 
suiting  directly  .  .  .  from  the  tor- 
tious conduct  or  language  of  his 
wife.  The  judgment  .  .  .  is  a  com- 
plete bar  to  his  subsequent  claim  for 
exemption.  Slaughter  v.  Detiney,  13 
Ind.  49 ;  Sullivan  v.  Winslow,  22  Ind. 
153 ;  Love  v.  Blair,  72  Ind.  281." 

*  Indiana  has  no  homestead  law 
but  has  exemption  of  both  realty  and 
personalty :  six  iiundred  dollars' worth 
of  property  are  exempt  to  a  resident 
householder,  and  it  may  be  taken  in 
land  or  chattels  or  both.  The  act  of 
May  31,  1879  provides :  "  An  amount 
of  property  not  exceeding  in  value 
six  hundred  dollars,  owned  by  any 
resident  householder,  sliall  not  be 
liable  to  sale  on  execution  or  any 
other  final    pi'ocess    from    a    court. 


916 


EXEMPTION    DENIED    IN    CERTAIN    SUITS,  ETC. 


The  costs  take  the  character  of  the  judgment,  as  to  chattel 
exemption.*  Even  the  surety  of  a  tort-doer  cannot  success- 
fully claim  exemption  against  the  judgment  and  costs  for  the 
acts  of  his  principal.^  A  guardian's  liability,  to  pay  costs  ad- 
judged, was  held  to  be  on  contract  when  no  fraud  or  negli- 
gence had  been  charged  against  him  as  causes  for  his  removal 
from  office.^ 

§  7.  Fraudulent  Concealment. 
An  a]iplicant  for  real  and  personal  exemption,  in  a  state 
where  mixed  benefits  of  the  kind  were  and  are  allowable,  was 
denied  homestead  because  of  the  fraudulent  withholding  of  some 
of  his  personalty  in  the  exhibit  of  it.  He  had  withheld  a  few 
hundred  dollars,  to  bear  the  expense  of  the  litigation.  The 
lower  court  condemned  the  reservation  and  charged  the  jury 
that  an  applicant  cannot  ask  a  homestead  unless  he  come  into 
court  with  clean  hands ;  and  the  higher  court  approved  the 


for  any  debt  growing  out  of  or 
founded  upon  a  contract,  express 
or  implied,  after  the  taking  effect  of 
this  act."  R.  S.  (1881),  §  703.  The 
same  law  existed  before,  except  as  to 
the  amount  exempted.  3  R.  S.  (1876), 
p.  353.  "  In  the  early  case  of  State  v. 
Melogue,  9  lud.  196,  after  quoting  the 
statute,  the  court  said :  '  Under  the 
above  provisions,  we  think  property 
is  exempt  from  execution  only  in  ac- 
tions upon  contract.'  And  so  the  stat- 
ute has  always  been  construed  by 
this  court.  Keller  v.  McMahan,  77 
Ind.  62 ;  Thompson  v.  Ross,  87  Ind. 
156;  Nowling  v.  Mcintosh,  89  Ind. 
593 ;  Berry  v.  Nichols,  96  Ind.  287.  In 
the  last  case  cited,  in  speaking  of  the 
complaint,  the  court  said :  '  It  should 
have  been  averred  that  the  judg- 
ment had  been  rendered  on  a  debt 
growing  out  of  a  contract,  express 
or  implied ;  for,  if  it  grew  out  of  a 
tort,  the  exemption  was  not  allow- 
able.' In  Church  v.  Hag,  93  Ind.  323, 
it  was  substantially  held  that  the 
costs  recovered  by  the  plaintiff,  in  a 


suit  for  tort,  being  an  incident  of  the 
judgment  for  damages,  are  collect- 
ible on  execution  in  the  same  way ; 
the  judgment  is  an  entiret}*,  and  no 
property  is  exempt  from  an  execu- 
tion thereon,  either  for  the  damages 
or  the  costs.  .  .  .  Costs  are  not 
matter  of  contract,  but  they  are  given 
or  withheld  by  statute.  Dearinger  v. 
Ridgeway,  34  Ind.  54;  Schlicht  v. 
State,  56  Ind.  173 ;  Henderson  v.  State, 
96  Ind.  437,  on  p.  444."  Extract  from 
opinion  of  Judge  Howk,  for  the 
court,  in  the  case  of  Wingler  v.  Mc- 
intosh, 100  Ind.  439,  in  which  it  was 
held  that  no  exemption  can  be  al- 
lowed, though  the  suit  is  for  costs 
growing  out  of  a  suit  upon  contract, 
when  it  is  not  disclosed  by  record 
that  the  costs  are  incidental  to  in- 
debtedness from  express  or  implied 
contract 

iMassie  v.   Enyart,   33  Ark.   688; 
Clingman  v.  Kemp,  57  Ala.  195. 

2  Irwin  v.  State,  6  Lea,  588,     See 
State  v.  Cobb,  4  Lea,  481. 

3  Estate  of  Tavlor.  9  Pa.  Co.  Ct.  293. 


FBAimULENT  CONCEALMENT.  917 

charge.^  This  seems  entirely  just ;  but  it  has  been  held,  on  the 
contrary,  that  concealing  property  equal  in  value  to  that  which 
is  claimed  as  exempt  does  not  affect  the  claim.'*  But  when  a 
debtor  had  two  wagons,  and  hid  one  and  claimed  the  other, 
the  fraud  was  a  bar  to  his  subsequent  claim  for  treble  dam- 
ages of  the  oflBcer  for  wrongful  levy.' 

"  Before  a  dishonest  debtor  can  be  legally  entitled  to  ex- 
emptions, all  of  his  property  must  be  available  to  creditors, 
and  the  debtor  must  not  retain  an}'  of  the  fruits  of  his  fraud, 
or  remain  in  the  enjoyment  of  any  of  his  property  except  his 
exemptions.  If  any  of  his  property  remains  in  his  hands  un- 
appropriated to  creditors,  or  be  by  him  put  out  of  their  reach 
by  any  fraudulent  device  or  arrangement,  then  such  property, 
to  the  extent  of  its  value,  will  be  regarded  by  the  law  as  a 
satisfaction  of  his  claims  for  exemption."  * 

In  a  state  where  an  insolvent's  preference  of  creditors  is  not 
held  fraudulent,  it  seems  that  an  exemptionist  may  make  such 
preference  after  attachment  or  the  levy  of  exemption,  by  ap- 
plying to  the  payment  of  other  than  the  seizing  creditors,  such 
property  as  is  free  from  the  writ.^  But  he  cannot  give  away 
money  or  effects,  when  insolvent,  and  after  attachment,  with- 
out committing  fraud  upon  his  creditors.^ 

A  debtor's  duplicity,  concealment  of  property,  attempts  to 
avoid  creditors  by  putting  his  chattels  in  his  wife's  name, 
fraud  in  any  form  —  does  not  work  a  forfeiture  of  the  ex- 
emption right  everywhere.  True,  it  has  been  held  that  fraudu- 
lent practices,  of  the  kind  mentioned,  do  work  such  forfeiture ;  ^ 
and,  if  the  family  of  the  debtor  be  left  out  of  the  question,  or 
if  he  be  the  claimant  of  an  exemption  exclusively  personal  to 
himself,  there  is  good  reason  for  holding  him  to  that  estoppel 
which  his  denial  of  ownership  by  word  or  act  entails  upon 
him.  Having  averred  the  property  to  be  his  wife's,  what 
right  has  he  afterwards  to  say  that  it  is  his?     It  is  said  the 

1  McNally  v.  Mulherin,  79  Ga.  617.  5  Trager  v.  Feebleraan  (Ala.),  10  Sa 
See,   as   to  false   pretenses,   Hall  v.  213;  Weis  v.  Levy,  69  Ala.  209. 
Harris  (S.  D.),  46  N.  W.  93.  6  ib. 

2  Elder  v.  Williams,  16  Nev.  416.  'Strouse  v.  Becker,  38  Pa.  St  190; 

3  Yates  V.  Gransbury,  9  Colo.  323.     Kreider's  Estate,  135  Pa.  St  57a 
*  Naumburg  v.  Hyatt  24  Fed.  898, 

905;  Bruff  v.  Stern,  81  N.  C.  183. 


91><  EXEMPTION    DENIED    IN   CERTAIN    SUITS,  ETC. 

exemption  laws  are  not  confined  by  the  legislator  to  honest 
men,  and  therefore  one  does  not  forfeit  their  benefits  by  being 
a  roerue.^  True  —  those  laws  are  for  rascals  as  well  as  for 
good  men;  and  judges  are  not  to  discriminate  between  them, 
and  attempt  to  look  into  their  hearts.  The  applicant,  who  is 
within  the  statute,  is  entitled  to  the  benefit,  be  he  good  or 
bad.  But  this  is  not  to  the  point;  this  is  no  reason  why  one 
who  has  denied  ownership  should  not  be  held  estopped  when 
afterwards  claiming  it,  if  he  is  the  only  beneficiary. 

The  family  argument  is  better.  The  law  makes  the  wife 
and  children  of  the  debtor  beneficiaries ;  and  their  representa- 
tive, the  head  of  the  family,  ought  not  to  be  allowed  to  injure 
them  by  his  frauds.^  He  cannot  defeat  them  by  absconding, 
for  then  the  wife  may  assume  to  be  the  head  of  the  family 
and  claim  the  exemption  in  his  stead.* 

§  8.  Fraudulent  Sale. 

It  has  been  frequently  decided  that  the  debtor's  sale  of  ex- 
empt property  is  no  fraud  upon  tlie  creditor,  and  does  not 
debar  him  from  claiming  it  as  exempt  if  it  has  been  taken 
back  and  the  sale  rescinded.'' 

'  It  seems  that  the  debtor  forfeits  no  exemption  right  by 
committing  perjury  in  the  affidavit.  To  state  the  matter  as 
the  court  put  it :  "  What  we  now  decide  is,  that  when  a  claim 
for  exemption  is  substantially  in  accordance  with  the  statute, 
and  the  schedule  is  sworn  to  as  the  statute  requires,  the  sheriff 

1  Moseley  V.  Anderson,  4  Miss.  49.  Bush.  110;  Commissioners  v.  Riley, 

2  Stevens  v.  Carson,  27  Neb.  501;  75  N.  C.  144;  Gaster  v.  Hardie,  75 
Freeman  on  Ex.,  §  214a.  N.  C.  460 ;  Ketchum  v,  Allen,  46  Ct. 

3  Hamilton  v.  Fleming,  26  Neb.  240,  416 ;  Patten  v.  Smith,  4  Ct.  450 ;  Wil- 
2Ji5;  Schaller  v.  Kurtz,  25  Neb.  655 :  cox  v.  Hawley,  31  N.  Y.  648 :  Seers 
Frazier  v.  Syas,  10  Neb.  115.  v.   Hawks,  14  O.  St.  298;  Hanes  v. 

4  Redden  v.  Potter,  16  111.  App.  265 ;  Tiflfany,  25  O.  St.  549 ;  Tracy  v.  Cover, 
Berry    v.   Hanks,   28    111.    App.    51 ;  28  O.  St.   61 ;  Morris  v.  Tennent,  56 
Vaughn  v.  Thompson,  17  111.  78;  Bell  Ga.  577;  Bates  v.  Callender.  3  Dak. 
V.  Devore,  96  111.  217 ;  Bliss  v.  Clark,  256 ;  Elder  v.  Williams,  16  Nev.  416 
39  111.  590 ;  Ives  v.  Mills,  37  111.  75 ;  Kulage  v.  Schueler,  7  Mo.  App.  250 
Green  v.  Marks,  25  111.  223 ;  Mosby  v,  Callaway  v.  Carpenter,  10  Ala.  500 
Anderson,  40  Miss.  49 ;  Duvall  v.  Rol-  Naumburg   v.   Hyatt,   24  Fed.   898 
lins,  71  N.  C.  221 ;  Crummen  v.  Ben-  Prout  v.  Vaughn,  52  Vt  451 ;  Het- 
nett,  68  N.  C.  494 ;  McCord  v.  Moore,  rick  v.  Campbell,  14  Pa.  St.  263. 

5   Heisk.  734;  Anthony  v.  Wade,  1 


FBAUDULENT   SALE.  919 

cannot  refuse  to  appraise  and  set  apart  the  property  on  the 
ground  of  perjury  in  the  affidavit."  ' 

It  has  been  held  that  the  vendee  of  chattels  fraudulently 
sold  to  him  cannot  set  up  the  vendor's  privilege  of  exemption 
against  the  hitter's  creditors  who  proceed  against  the  goods 
to  execute  their  judgment,  or  to  attach  by  trustee  process. 
Fraud  against  creditors  is  held  possible  by  an  exemptionist  in 
the  disposition  of  his  exempt  property,  in  this  connection.^ 

A  debtor  sold  his  stock  of  goods,  paid  a  part  of  the  pro- 
ceeds to  preferred  creditors,  and  retained  the  balance  as  ex- 
empt—  it  not  exceeding  the  sum  of  $1,000  allowed  to  debt- 
ors. Of  this  transaction,  it  was  judicially  said  "  that  it  could 
make  no  possible  difference  to  his  creditors  whether  the  prop- 
erty retained  by  him  as  exempt  consisted  of  a  part  of  a  stock 
of  goods  or  of  the  equivalent  in  value  thereof  in  notes  or  in 
cash.  There  is  nothing  for  creditors  to  complain  of  in  a  trans- 
action which  cannot  have  effect  to  work  any  detriment  to 
their  rights  in  reference  to  the  property  of  the  debtor.  The 
charges  requested  by  the  defendants  are  framed  upon  the 
theory  that,  though  the  excess  in  value  of  the  stock  of  goods 
above  the  sum  of  the  debts  paid  therewith,  together  with 
[the  debtor's]  other  property,  did  not  amount  to  more  than  he 
could  claim  as  exempt,  yet,  if  notes  payable  in  the  future 
were  taken  by  the  debtor  for  such  excess,  the  law  would  pro- 
nounce the  transaction  fraudulent  as  against  other  creditors. 
Our  conclusion  is  that  such  a  mere  change  in  form  of  a  part 
of  the  debtor's  exempt  property  could  not  vitiate  the  transac- 
tion, as  the  change  involves  no  prejudice  to  the  right  of  cred- 
itors, and  that  the  charges  were  properly  refused." '    .     .     . 

1  Over  V.  Shannon,  91  Ind.  99,  citing  Rhoads,  34  Pa,  St.  187 ;  Freeman  v. 
Douch  V.  Eahner,  61  Ind.  64.  See  Smith,  30  Pa.  St.  264 ;  Carl  v.  Smith, 
Boesker  V.  Pickett,  81  Ind.  554 ;  Kel-  8  Pliila.  569;  Larkin  v.  McAunally, 
ley  V.  McFadden,  80  Ind.  536.  5  Phila  17.     So  held  formerly  in  In- 

2  Tilton  V.  Sanborn,  59  N.  H.  290 ;  diana  and  Illinois.  Mandlove  v.  Bur- 
Somers  v.  Emerson,  58  N.  H.  48 ;  ton,  1  Ind.  39 ;  Cook  v.  Scott,  6  111. 
Gutterson  v.  Morse,  58  N.  H.  529 ;  344 :  Cassell  v.  Williams,  12  111.  387. 
Currier  v.  Sutherland,  54  N.  H.  475 ;  See  Brackett  v.  Watkins,  21  Wend. 
Wooster  v.  Page.  54  N.  H.  125  ;  Kent  68 ;  Brinson  v.  Edwards  (Ala.),  10  So. 
V.  Hutchins,  50  N.  H.  92;  Manchester  219;  Byrd  v.  Curlin,  1  Humph.  466. 
V.  Burns,  45  N.  H.  482 ;  Emerson  v.  »  Brinson  v.  Edwards  (Ala.),  10  So. 
Smith,  51  Pa.  St  90 ;  Smith  v.  Emer-  219. 

son,   48    Pa.    St.    456 ;    Gilleland    v. 


920 


EXEMPTION    DENIED    IN    CERTAIN    SUITS,  ETC. 


"  As  only  part  of  the  consideration  was  the  payment  of  an- 
tecedent debts,  the  validity  of  the  sale  against  other  creditors 
is  to  be  determined  by  the  rules  governing  sales  by  debtor*^ 
for  a  new  consideration."  ^  The  sale  was  invalid  as  to  other 
creditors,  if  there  was  design  to  defraud  or  delay  them,  and 
if  the  purchaser  had  notice  of  such  design.^  But  giving  pref- 
erence, when  the  law  permits  it,  does  not  invalidate  the  trans- 
action.^ 

The  seller  of  chattels,  whose  purpose  is  to  cheat  his  credit- 
ors, cannot  afterwards  claim  exemption  as  to  such  articles 
when  they  are  levied  upon  at  the  suit  of  the  creditors.  There 
is  an  exception  to  this,  however.  Articles  specifically  exempt 
may  be  claimed  under  such  circumstances,  and  even  other 
articles  may  be  when  they  compose  all  the  debtor's  effects  and 
are  worth  no  more  than  the  exemption  limit.*  This  is  the 
law  where  the  courts  so  hold ;  but,  on  principle,  the  exception 
may  not  hold  everywhere.    The  analogy  between  chattels  and 

ii&.;    Owens  v.    Hobbie,   82    Ala 


2  Lehman  v.  Kelly,  68  Ala.  192. 

3  Carter  v.  Coleman,  84  Ala.  256. 
In  Brinson  v.  Edwards,  supra,  it  is 
said  of  the  debtor :  "  It  is  plain 
that  he  had  the  right  to  pay  the 
preferred  debts  with  their  equiv- 
alent in  value  from  the  stock  of 
goods,  and,  if  what  was  left,  together 
with  his  other  personal  property,  did 
not  amount  to  more  than  $1,000  in 
value,  and  he  was  a  resident  of  the 
state,  he  could  have  disjjosed  of  such 
remainder  of  the  stock  just  as  he 
pleased ;  for,  if  the  debtor's  property 
does  not  exceed  in  value  the  amount 
exempted,  the  exemption  privilege 
is  attached  to  it  by  operation  of  the 
statute,  without  any  act  of  selection 
by  him,  and  creditors  cannot  be 
prejudiced  by  any  disposition  of 
property  which  is  not  liable  to  their 
demands.  Nance  v.  Nance,  84  Ala. 
375:  4  South.  Rep.  699;  Alley  v. 
Daniel,  75  Ala.  403 ;  Myers  v.  Con- 
way, 90  Ala.  109 ;  7  South.  Rep.  639. 
By  selling  the  whole  stock  in  bulk. 


and  taking  notes  or  cash  for  the  dif- 
ference between  its  estimated  value 
and  the  debts  paid,  no  greater  bene- 
fit was  reserved  to  the  debtor,  nor 
was  the  position  of  his  creditors 
changed  for  the  worse.  Whether 
the  property  that  could  be  claimed 
as  exempt  was  disposed  of  in  the  one 
way  or  the  otlier,  the  result  would 
not  be  to  secure  to  the  debtor  any- 
thing more  than  he  was  entitled  to 
retain,  or  to  put  out  of  the  way  of 
other  creditors  any  property  which 
they  had  the  right  to  have  applied 
to  the  satisfaction  of  their  claims. 
No  more  in  the  cvne  case  than  in  the 
other  does  the  debtor  acquire  any 
benefit  beyond  what  the  law  would 
have  secured  to  him.  McDowell  v. 
Steele,  87  Ala.  493 ;  6  South.  Rep.  288." 
*  State  V.  Koch,  40  Mo.  App.  635 ; 
Alt  V.  Bank,  9  Mo.  App.  91 ;  Kulage 
V.  Schueler,  7  Mo.  App.  250;  Wein- 
rich  V.  Koelling,  21  Mo.  App.  133; 
Stotesbury  v.  Kirtlaud,  35  Mo.  App. 
157 ;  Hombs  v.  Corbin,  34  Mo.  App. 


FKADDULENT  ASSIGNMENT.  921 

homesteads,  in  this  respect,  has  been  frequently  pointed  out 
by  the  courts,  but  it  is  not  quite  perfect.  A  chattel  specific- 
ally exempt,  such  as  a  horse  and  wagon,  may  be  readily  trans- 
ported from  one  place  to  another;  title  passes  by  delivery; 
there  is  no  record  of  the  sale  ordinarily :  so  there  are  difficul- 
ties in  treating  chattel  sales  as  nullities  which  do  not  attend 
abortive  transfers  of  realty.  "When  the  identity  of  chattels 
sold  by  the  debtor  has  been  lost,  creditors  are  necessarily 
without  means  of  exercising  any  direct  remedy  against  them.' 

§  9.  Fraudulent  Assignment. 

A  debtor  may  mortgage  all  his  personal  property,  if  it  is 
all  exempt,  without  defrauding  his  creditors,  since  they  are 
treated  as  disinterested.^  But  he  cannot  reserve  from  an  as- 
signment of  his  property  for  the  benefit  of  his  creditors,  money 
equal  to  his  chattel  exemption,  to  be  given  him  from  the  pro- 
ceeds of  the  property.^ 

A  debtor  surrendered  his  property  by  deed  of  assignment, 
with  express  reservation  of  "the  exemptions  allowed  by  law." 
He  specified  no  property,  selected  none,  but  meant  to  have 
the  value  of  the  exemptions  returned  to  him  from  the  pro- 
ceeds of  the  property  surrendered.  An  attachment  suit  was 
brought,  in  which  the  assignment,  offered  in  evidence,  was 
excluded  for  "  fraud  upon  its  face,"  by  the  trial  court.  The 
question  of  the  exclusion,  whether  rightful,  was  the  only  one 
presented  to  the  supreme  court.  Was  the  assignment  prima 
facie  fraudulent  because  of  the  reservation  of  the  value  of 
exemptions  that  might  have  been  claimed  in  the  property 
assigned?  The  reasoning  of  the  court  will  furnish  the  matter 
of  the  following  remarks  m  reply. 

The  deed  expressly  transfers  all  the  assignor's  personal 
property.  There  is  a  habendum  directing  the  assignee  to  dis- 
pose of  it  as  the  law  requires  respecting  trust  property,  and 
pay  the  assignor  (in  addition  to  the  wearing  apparel  of  himself 
and  his  family  and  such  other  property  as  he  might  select  at 

1  Post  V.  Bird  (Fla.),  9  So.  888.  value,  defrauds  the  debtor.     No  se- 

2  Sims    V.   Phillips,   54    Ark.    193 ;  lection  can   be   made  of  a  specific 
Blythe  v.  Jett,  52  Ark.  547 ;  Erb  v.  portion  so  as  to  bind  the  mortgagee. 
Cole,  31  Ark.  554.     Mortgaged  prop-  Bayne  v.  Patterson,  40  Mich.  658. 
erty  of  the  debtor,  selected  by  the  ^  King  v.  Ruble,  54  Ark.  418. 
officer  at  more  than  the  appraised 


922  EXEMPTION    DENIED    IN   CERTAIN   SUITS,  ETC. 

its  appraised  value),  such  sum  as  will  amount  to  five  hundred 
dollars  —  adding  "which  I  hereby  claim  and  reserve  as  the 
amount  allowed  me  by  law  as  exempt  from  sale." 

Under  this  assignment,  the  property  passed  to  the  assignor. 
Not  the  property  less  the  exemptions,  but  all.  The  case  is 
therefore  different  from  those  in  the  books  in  which  the  title 
to  exempt  chattels  never  so  passed.  The  court  said  the  ques- 
tion, in  this  case,  had  seldom,  if  ever,  been  before  the  courts. 

The  general  rule  is  that  an  insolvent  cannot  assign  his  prop- 
erty to  another  in  trust  for  himself.  While  he  may  hold 
property  to  the  value  of  the  exemption,  and  assign  the  rest, 
creditors  may  claim  all  he  has  above  the  exempt  things  re- 
tained. They  are  injured  by  the  burdening  of  the  residue  — 
the  assigned  portion  of  the  debtor's  property  —  with  any 
further  claim  by  him.  They  are  not  injured  by  his  selection 
and  reservation  of  property  before  assigning  the  balance  of 
it  —  for  they  never  had  any  right  to  look  to  the  exempt  por- 
tion. Is  the  difference  tbat  between  six  and  half  a  dozen? 
Something  more :  the  law  of  assignment  made  it  the  duty  of 
the  assignee  to  sell  all  the  assigned  property  at  public  auction, 
and  to  reduce  assigned  choses  in  actio7i  to  possession.  What- 
.ever  expense  the  sale,  and  suits  upon  promissory  notes,  and 
the  like,  would  cause,  the  assignor  would  escape  by  this 
arrangement,  so  that  he  would  get  his  five  hundred  dollars 
clear,  in  cash,  instead  of  taking  property  at  that  valuation  by 
selection  before  assignment.  Perhaps  the  court  may  have 
made  too  much  of  this  argument,  since  the  presumption  is 
that  ap,;raisers  would  have  given  the  debtor  property  worth 
five  hundred  dollars  in  cash ;  and,  had  he  selected  regularly 
and  assigned  the  non-exempt  property,  he  would  have  been  at 
no  expense  of  sales,  suits,  fees  of  attorneys,  charges  of  as- 
signee, etc.  True,  the  assignment  of  more  than  the  creditors 
could  have  did  increase  the  commissions  of  the  Assignee,  and 
did  put  a  burden  on  the  creditors  which  was  illegal  if  the 
debtor's  claim  on  the  proceeds  was  just.  Had  the  assigned 
property  consisted  .wholly  of  perishable  goods,  so  that  its 
value  was  reduced  by  half  before  the  assignee's  sale,  must  the 
debtor  still  have  his  five  hundred  dollars?  If  the  assignment 
was  valid  —  yes.  But  this  is  absurd.  The  assignment  of  all 
the  property  to  creditors,  with  reservation  that  the  whole 


FRAUDULENT    ASSIGNMENT,  923 

amount  of  the  claimable  exemption  be  paid  back  to  the  as- 
signor after  administration,  cannot  be  maintained;  it  is priyna 
faoie  unfair  to  creditors. 

Wherever  the  debtor's  right  of  exemption  depends  upon  his 
Q\^m\v(\g property ^  as  in  this  case,  he  must  claim  in  the  method 
which  the  exemption  statute  prescribes  or  lose  his  opportunity; 
and  it  is  submitted  that  the  reasoning  of  the  court,  in  the  case 
above  considered,  is  good  law  in  all  states  which  have  statutes 
like  the  one  under  Avhich  the  assignment  in  question  was  made.' 

Claiming  fraudulently:  Judgment  having  been  obtained 
by  a  wife  against  her  husband,  for  maintenance,  his  employ- 
ers were  garnished  in  aid  of  execution.  They  answered  that 
they  had  paid  him  in  advance.  The  jury  found  that  the  pay- 
ment was  in  fraud  of  her  rights,  and  the  court  sustained  the 
verdict.  Though  his  wages  w^ere  exempt  as  to  earnings  dur- 
ing thirty  days  immediately  prior  to  the  garnishment,  under 
ordinary  circumstances-  (as  he  was  the  head  of  a  family  con- 
sisting of  himself,  his  mother  and  his  sisters),^  yet  under  the 
circumstances  of  the  case  at  bar,  the  court  considered  the 
payments  in  advance  to  have  been  made  by  fraud  and  collu- 
sion between  the  defendant  and  garnishees,  and  ordered  the 
latter  to  pay  again;  and  it  was  held  that  his  claim  of  exemp- 
tion for  his  ^vages  could  not  be  allowed  without  a  perversion 
of  the  object  of  the  statute.*  "  In  a  case  like  the  one  which 
w^e  have  here,"  the  court  said,  "  very  slight  circumstances 
would  be  sufficient  to  authorize  the  jury  to  find  that  the  con- 
tract w^as  entered  into  to  embarrass  creditors."  ^ 
•  The  debtor  cannot  .claim  what  he  has  legally  assigned.®  But 
the  assignee,  when  the  wife  of  the  assignor,  may  hold  exempt 
a  note  assigned  to  her  by  him,  it  was  held,  though  there  had 
been  judgment  against  him,  followed  by  the  issue  of  an  execu- 
tion. No  claim  of  exemption  was  made  till  the  wife  had  sued 
upon  the  note,  and  the  judgment  had  been  pleaded  as  set-off.'^ 

1  See  Burrill  on  Assignments,  §  203.  33  Mo.  App.  24 ;  Fay  v.  Smith,  25  Vt 

2  Mo.' Rev.  Stat.  (1889),  sec.  5220.  610. 

3  Wade  V.  Jones,  20  Mo.  75 ;  Dun-        ^  Stotesbury  v.    Kirtland,   35    Mo. 
can  V.  Frank,  8  Mo.  App.  286 ;  Nash  App.  148. 

V.  Nornieut,  5  Mo.  App.  545.  ^  Pickiell  v.  Jerauld  (Ind.),  27  N.  E. 

*  Spengler  v.    Kaufman,    46    Mo.  433.     Tlie  decision  cites,  to  sustain  its 

App.  644.  liberality.  Junker  v.  Husted,  113  Ind. 

^  lb.;  citing  Reinhart  v.  Soap  Co..  524;  Barnard  v.  Brown,  112  Ind.  53. 


CHAPTER  XXX. 

FEDERAL  HOMESTEADS. 


1.  Distinctive  Features. 
3.  Beneficiaries. 

3.  Entry  —  Wliat  Land  Open. 

4.  Application  and  Settlement. 

5.  Soldiers'    and    Sailors'     Home- 

steads. 

6.  Executive  Acts. 


5  7.  Judicial  Action. 

8.  Settler's  Rights  Relative  to  Rail- 

roads. 

9.  Alienation  Inhibited. 

10.  Incumbrances, 

11.  Title. 


§  1.  Distinctive  Features. 

Differentiation:  The  federal  homestead  differs  in  important 
particulars  from  that  of  a  state.  It  is  not  necessarily  a  family- 
residence,  it  is  not  conditioned  upon  perpetual  occupancy,  it 
is  not  subjected  to  restraint  as  to  alienation  and  testamentary 
disposition  after  acquisition,  as  state  homesteads  usually  are. 
The  two  most  important  differences  relate  to  ownership  and 
exenijition.  While  the  state  homestead  is  carved  upon  prop- 
erty already  possessed  by  the  beneficiary,  the  federal  is  do- 
nated to  him  by  the  government  on  certain  conditions.  "While 
the  state  homestead  is  exempt  from  the  ordinary  debts  of  the 
owner  contracted  after  notice  and  not  from  antecedent  debts, 
the  federal  is  exempt  from  debts  antecedent  to  the  acquisition 
of  title  and  not  from  those  subsequent. 

The  definition  of  the  federal  homestead,  therefore,  is  not  the 
same  as  that  of  the  state.  It  is :  Land  donated  by  the  United 
States  to  a  settler  upon  the  conditions,  and  the  limitations, 
prescribed  by  statute.  The  principal  conditions  are  occupancy 
and  cultivation  for  five  years.  The  principal  limitation  is  as 
to  tlie  quantity  of  land  bestowed  on  the  settler. 

Policy:  The  ])olicy  of  federal  homestead  legislation  is  rather 
to  induce  the  making  of  family  homes  than  to  conserve  them; 
and  it  is  also  to  parcel  out  the  public  domain  to  industrious 
citizens  who  Avill  improve  and  cultivate  the  portion  given 
them:  the  ultimate  end  being  the  promotion  of  the  public 
welfare  by  encouraging  a  worthy  yeomanry. 


DISTINCrnVE   FEATURES.  \}2b 

Principles:  The  principles  governing  the  beneiits  conferred 
under  the  homestead  laws  of  the  United  States  are  other  than 
those  controlling  state  exemptions.  From  the  date  of  entry 
to  that  of  the  patent,  the  homestead  is  not  liable  for  any  debts 
of  the  occupant,  for  the  reason  that  he  does  not  own  it.  The 
title  is  in  the  United  States.  When  he  becomes  the  owner, 
on  what  principle  is  the  creditor  denied  execution  against  the 
property  on  judgment  rendered  for  debt  previoush'  contracted 
by  the  settler?  A  private  citizen  cannot  confer  land  in  fee- 
simple  upon  a  donee  which  shall  not  be  liable  for  the  latter's 
debts;  cannot  make  non-liability  a  condition,  for  he  has  no 
control  over  the  subject.  But  the  United  States  can  and  does 
donate  its  public  land  to  settlers  for  homesteads  and  makes 
the  property  free  from  liability  for  existing  tlebts.  The  cred- 
itor is  not  injured.  Nothing  is  withdrawn  from  his  grasp 
which  he  could  reach  before  the  donation.  He  is  not  put  to 
the  worse  by  his  debtor  being  made  the  better. 

Exemption:  It  is  upon  the  principle  of  the  sovereign  riglit 
to  protect  the  donation  after  it  has  been  bestowed  that  the 
government  exempts  the  homestead  from  antecedent  debts 
after  ceasing  to  own  it.  No  one  can  complain  of  this  super- 
vision unless  it  be  a  state  after  the  homestead  has  come  within 
its  authority.  The  state  cannot,  for  the  federal  exercise  of 
right  of  protection  is  no  violation  of  state  sovereignty.^  Con- 
sidered as  a  provision  without  which  the  donations  might  not 
have  been  made ;  and  considered  as  an  advantage  to  the  states, 
since  they  are  benefited  by  gifts  to  their  citizens,  the  exemp- 
tion from  debts  prior  to  the  patent  seems  unobjectionable. 
The  provision  of  the  statute  is  that  no  lands  acquired  under  it 
"shall,  in  any  event,  become  liable  to  the  satisfaction  of  any 
debt  contracted  prior  to  the  issuing  of  the  patent  therefor."  - 

"  The  right  to  make  rules,  by  which  the  lands  of  the  gov- 
ernment may  be  sold  or  given  away,  is  acknowledged,"  '  The 
power  of  congress  to  make  contracts  with  settlers  under  the 
homestead  law,  to  grant  benefits  on  conditions,  to  regulate 
transfers  by  settlers,  and  the  like,  has  been  judicially  recog- 
nized.* 

1  Lewton  v.  Hower,  18  Fla.  872.  » Lamb  v.  Davenport,  18  Wall.  307. 

2  R.  S.,  §  3296 ;  Seymour  v.  Sanders,  ^  Gibson  v.  Choteau,  13  Wall.  92 ; 
3  Dill.  437,  United  States  v.  Gratiot,  14  Pet  526. 


926  FEDKRAL    HOMESTEADS. 

A  judgment  obtained  on  a  debt  contracted  before  the  issue 
of  the  patent  bears  no  lien  upon  the  land;  the  land  cannot 
be  sold  under  execution  of  such  judgment,  whether  it  re- 
mains owned  and  possessed  by  the  original  settler,  or  belongs  to 
a  purchaser  to  whom  he  has  transferred  his  title  after  having 
perfected  it.^  Exemption  dates  from  the  original  entry,  which 
is  the  purchase;  the  issuance  of  the  patent  retroacts  to  that 
time,  in  effect.^  "  No  attempt  is  made  by  congress  to  con- 
trol these  lands  [the  public  lands  donated  for  homestead],  or 
put  any  condition  on  the  state  in  reference  to  them,  for  any 
act  done  or  debt  contracted  after  title  has  passed  from  the 
United  States."  The  settler  is  assured  that  the  land  he  en- 
ters shall  be  exempt  from  liabilit}''  for  debts  contracted  while 
the  title  remains  in  the  government.  He  is  guarantied  this, 
whether  the  patent  shall  be  issued  to  him,  or  to  his  widow? 
or  to  his  heirs  or  devisees.' 

Exemption  inures  to  the  benefit  of  the  deceased  settler's 
successors  —  that  is,  his  widow  and  minor  children — just  as 
to  him,  had  he  lived  to  receive  the  patent  on  completing  his 
title.  The  pointed  statutory  provision  to  this  effect  *  has  al- 
ways been  carried  out  by  the  courts.^ 

§  2.  Beneficiaries. 

Qualifications:  A  person  making  a  homestead  entry  must 
be  of  age  or  the  head  of  a  family,  and  must  be  a  citizen  of  the 
United  States  or  an  applicant  for  naturalization;  or  he  must 
be  qualified  under  the  law  allowing  soldiers  and  sailors  to 
claim.  He  must  also  be  capable  of  contracting  so  that  he  can 
understandingly  assume  the  obligations  w^hich  he  takes  to 
perform  the  conditions  upon  which  the  homestead  is  bestowed. 

An  incompetent  person  cannot  make  a  homestead  entry,  nor 
can  it  be  made  for  him.  The  guardian  of  an  adult  who  was 
afflicted  with  the  softening  of  the  brain  was  not  permitted  to 
make  entry  for  his  ward.  He  could  not  swear  to  the  intention 
of  his  ward,  nor  could  the  latter  swear  to  it  for  himself  since 

1  Sorrels  v.  Self,  43  Ark.  451 ;  Miller        <  R.  S.,  §  2296. 

V.    Little,   47    Cal.    348;    Russel  v.        ^Ih.;  Seymour  v.  Sanders,  3  Dill. 

Lowth,  21  Minn.  167.  437 ;  Gile  v.   Hallock,  33  Wis.   523 ; 

2  Green  v.  Farrar,  53  la.  426.  Nycum  v.  McAllister,  33  la.  374 

3  Sorrels  v.  Self,  supra. 


BENEFICIARIES.  927 

he  was  mentally  incapable.  The  statute  requires  oath  to  the 
intention :  so  as  no  compliance  could  be  had,  no  entry  could  be 
made.^ 

Married  applicants:  Though  two  homesteads  cannot  be 
taken  by  a  married  couple,  each  spouse  while  single  may  have 
taken  the  preliminary  steps  to  one ;  and  the  marriage  will  not 
invalidate  the  right  acquired.  So,  after  the  wedding,  each 
may  go  on  to  com})lete  his  or  her  claim  by  the  necessary  period 
of  residence  and  cultivation.  One  homestead  may  be  thus  com- 
pleted and  the  other  commuted ;  or,  both  may  be  commuted. 
The  married  beneficiaries  may  occupy  a  house  built  on  the 
dividing  line  between  the  two  homesteads  and  hold  both  tracts.^ 

A  deserted  wife  is  treated  as  the  head  of  her  family  when  she 
is  in  possession  of  land  entered  by  her  husband.  She  may  go  on 
and  complete  the  performance  of  the  conditions;  she  may 
make  the  final  proof  in  his  name,  or  she  may  prove  the  deser- 
tion and  make  entry  in  her  own  name.^  Her  rights  cannot  be 
defeated  by  her  husband's  fraudulent  relinquishment  of  the 
homestead.^  In  a  contest  before  the  interior  department,  be- 
tween her  and  him,  on  the  question  of  his  fraudulent  relin- 
quishment to  the  prejudice  of  her  rights,  the  pleading  and 
evidence  may  be  such  as  to  render  the  case  not  reviewable  by 
the  courts ;  ^  at  least,  not  so  while  the  question  is  pending  be- 
fore the  department."  "While  such  a  contest  is  pending,  she 
will  be  protected  in  her  possession.''  Her  possession  of  the 
homestead,  after  her  husband  has  left  her,  is  such  that  she  may 
recover  damages  against  a  trespasser  for  dispossessing  her,  or 
for  removing  or  injuring  improvements ;  —  even  punitive  dam- 
ao^es  when  such  acts  were  malicious.^ 

Widoio  and  heirs:  A  deceased  settler's  widow  and  children 
may  complete  the  title  which  he  left  inchoate.  After  a  caveat 
had  been  filed  in  application  for  a  homestead,  and  the  applica- 
tion had  been  granted  pursuant  to  the  caveat,  the  land  was  sold 
at  judicial  sale,  and  the  purchaser  was  charged  with  notice. 

1  Ledford,  Matter  of,  1  Copp's  Land        »  Corbett  v.  Wood,  33  Minn.  509. 
Laws,  361.  «Empey  v.  Plugert,  64  Wis.  603. 

2  Hay,  Matter  of,  1  Copp,  363^  '>  Atherton  v.  Fowler,  96  U.  S.  513. 
»9LandDec.  Dep't  Int'r,  186;  2  lb.        SMichaelis  v.  Michaelis,  43  Minn. 

8L  12a 

*  14  Copp,  Land  Owner,  258. 


928  KEOKRAL    HOMESTEADS. 

The  applicant  dying,  bis  widow  and  children  filed  a  bill  to 
have  themselves  subrogated  to  his  rights  and  to  compel  the 
purchaser  to  account  for  the  rents  and  profits  of  the  land  sub- 
sequent to  the  grant  of  homestead.  It  was  held  that  the  bill 
would  lie.^ 

An  heir,  who  perfects  a  homestead  claim  and  gets  a  patent, 
is  not  barred  by  a  judgment  in  ejectment  against  the  admin- 
istrator of  the  deceased  settler.^  Minor  heirs  succeed  to  the 
right  of  their  deceased  parents.  The  homestead  may  be  sold 
for  their  benefit,  though  the  patent  has  not  been  issued,  and 
the  purchaser  may  complete  the  title  and  obtain  the  patent.^ 
All  heirs  under  twenty-one  years  of  age  are  "  infants"  within 
the  meaning  of  the  statute ;  so  that,  in  a  state  where  daugh- 
ters reach  their  majority  at  the  age  of  eighteen  while  sons  do 
not  till  they  become  twenty-one  years  of  age,  it  was  held  that 
the  meaning  of  the  federal  homestead  law  should  govern,  and 
that  a  daughter  over  eighteen  but  under  twenty-one  was  a 
beneficiary  as  well  as  her  minor  brothers.*  Minor  children 
who  survive  their  parents  take  the  whole  estate  of  an  incom- 
plete homestead  entry.     Adult  children  are  excluded.'^ 

Foreign-horn  applicants:  The  qualification  of  citizenship,  or 
of  application  therefor,  has  been  frequently  passed  upon. 
When  a  foreigner  has  made  homestead  entry,  it  must  be  can- 
celed for  illegality  if  he  did  not  declare  his  intention  of  be- 
coming naturalized  prior  to  the  entry.  A  subsequent  declara- 
tion will  not  cure  the  invalidity."  Proof  of  citizenship  must 
be  made  by  the  enterer,  if  foreign  born ;  but  it  may  be  done 
when  making  the  final  proof  to  obtain  his  certificate.^  And, 
at  that  time,  a  foreigner  was  allowed  to  have  his  final  certifi- 
cate, thougli  his  intention  had  been  declared  after  entry,  on 
the  ground  that  he  had  erroneously  believed  himself  to  be  a 
citizen  when  he  made  the  entry.^  This  case  must  be  taken  as 
exceptional.  Ignorance  of  the  law  was  allowed  to  excuse  a 
foreign  mil  .r  who  had  made  entry,  settled  upon  the  land  and 
made  valuable  improvements.     On  reaching  his  majority,  he 

1  Hodges  V.  Hightower,  68  Ga.  281.        6  Bernier  v.  Bernier,  73  Mich.  43. 

2  Cliant  V.  Reynolds,  49  Oal.  213.  «  Mairion,  Matter  of,  1  Copp,  363. 
3R.  S.,  §  2292.  7  Hill,  Matter  of,  1  Copp,  363. 

*  Anderson  v.   Peterson,  36  Minn-        8  Hay,  Matter  of,  1  Copp,  362. 
547,  549. 


ENTKY WHAT    LAND    OPEN.  921) 

prayed  to  have  liis  entry  caiiculed  and  a  new  one  allowed 
him.  In  view  of  his  good  faith,  the  original  entry  was  alIowe(t 
to  remain  intact,  subject  to  final  proof  after  five  years  fron> 
the  time  he  had  reached  his  majority  —  the  case  then  to  be 
laid  before  the  board  of  adjudication.'  This  course  was  ir- 
regular, and  ought  not  to  be  drawn  into  precedent.  It  was 
probal)ly  less  satisfactory  to  the  settler  than  compliance  witU 
his  reasonable  prayer  would  have  been,  as  it  left  him  long  in 
a  state  of  uncertainty  as  to  the  final  action  of  the  board.  By 
what  legal  authority  this  course  was  pursued,  we  are  not  iin- 
formed.  Had  the  settler  been  a  native  minor,  not  the  head  of 
a  family,  who  had  rendered  no  military  or  naval  service  to 
his  country,  his  homestead  entry  would  have  been  canceled 
on  ascertainment  of  the  want  of  the  conditions  required  b^' 
law.^ 

§  3.  Entry  — What  Land  Open. 

What  quantity:  The  qualified  applicant  may  enter  a  quar- 
ter section  or  less  after  having  filed  a  pre-emption  claim  to 
such  quantity  of  unappropriated  land.  If  such  land  is  sub- 
ject to  pre-emption  at  a  dollar  and  a  quarter  per  acre  when 
the  application  is  made,  it  may  be  entered  without  prior  pre- 
emption. Eighty  acres  or  less,  in  a  body,  subject  to  pre-emp- 
tion at  two  dollars  and  a  half  per  acre,  may  be  entered  as 
homestead  after  it  has  been  surveyed.  Every  owner,  occupy- 
ing his  land  as  a  home,  may  enter  contiguous  land,  but  not 
in  such  quantity  as  to  make  both  together  exceed  a  quarter 
section.*     No  one  can  acquire  more  as  homestead.'* 

Mineral  landi^:  Only  land  subject  to  pre-emption  is  open 
to  homestead  entry.  As  mineral  land  cannot  be  pre-empted,' 
it  cannot  be  made  a  homestead.**  If  entry  be  made,  and  even 
if  the  patent  be  issued,  the  title  will  be  void.  The  section 
last  cited  reserves  from  pre-emption  and  homestead  entry, 
"  lands  on  which  are  situated  any  known  salines  or  mines." 
In  a  case  involving  it,  the  supreme  court  said  through  Mr. 
Justice  Davis:  "The  salines  in  this  case  were  not  hidden  as 
mines  often  are,  but  were  so  incrusted  with  salt  that  they  re- 

1J6.,  361.  '•16,8  2289. 

^  J6.,  360,  386.  6/6.,  2258. 

='  U.  S.  Rev.  Stat,  §  2289.  «§  2302. 
59 


930  FEDERAL    HOMESTEADS. 

sembled  'snow-covered  lakes,' and  were  consequently  not  sub- 
ject to  pre-emption.  .  .  .  What  effect  the  statute  might 
hav^e  on  salines  hidden  in  tlie  earth,  not  known  to  the  sur- 
veyor or  the  locator,  but  discovered  after  entry,  may  become 
a  question  in  another  case."  ^  It  is  "  known  "  mineral  lands 
which  are  reserved  from  entry.  If  knowingly  entered,  the 
certiiicate  and  patent  subsequently  issued  will  not  avail.  "It 
has  been  repeatedly  decided  that  patents  for  lands  which  have 
been  previously  granted,  reserved  from  sale,  or  appropriated, 
are  void."^  The  settler  on  such  land  acquires  no  vested  right 
to  it.  The  United  States,  by  a  bill  in  equity,  can  cancel  a 
patent  which  has  been  issued  to  him.^ 

When  lands,  though  containing  minerals,  do  not  have  them 
in  such  quantity  as  to  render  mining  thereon  more  profitable 
tiian  agriculture,  they  may  be  pre-empted  or  subjected  to 
homestead  entry.'*  This  is  the  rule  of  the  land  department. 
There  may  be  gold  and  silver  on  the  land,  but  if  the  cultiva- 
tion of  the  soil  is  more  profitable  than  the  work  of  getting 
these  metals,  the  land  is  not  ranked  as  mineral  land  by  that 
department. 

Occupied  lands:  A  grant  to  a  state  of  "  unappropriated 
non-mineral  land  "  was  held  not  to  embrace  land  which  had 
been  improved  and  occupied  for  years  by  settlers.'^  The  land 
had  not  only  been  largely  improved  but  had  been  sold  and  re- 
sold during  the  several  years  of  its  occupancy.  The  court, 
passing  upon  its  status,  said :  "  Under  this  state  of  facts  it 
cannot  be  contended,  under  the  repeated  decisions  of  both 
national  and  state  courts,  that  this  land  was  '  una))propriated 
public  land '  at  the  time  of  its  selection  by  the  state."  ^ 

Such  lands  are  not  open  to  appropriation  by  new  claimants, 
however  wanting  in  legality  the  title  of  the  original  settlers 
may  have  been.     The  latter  may  have  acquired  no  right  as 

1  Morton  v.  Nebraska,  21  Wall.  660,  30  Fed.  309 ;  Williams  v.  United 
674.  States,  138   U.  S.  514,  in   which  the 

2  lb.,  citing  Polk  v.  Wandell,  9  Cr.  circuit  court  decision  was  affirmed. 
99;  Minter  v.  Crommelin,  18  How.  ^  Jt,.^  citing  Atherton  v.  Fowler,  96 
88;  Reichart  V.  Felps,  6  Wall.  160.  U.  S.  513;  Hosnier   v.   Wallace,   97> 

3  McLaughlin  v.  United  States,  107  U.  S.  575 ;  Trenouth  v.  San  Fran- 
U.  S.  526.  Cisco,  100  U.  S.  251 ;  Nickals  v.  Winn, 

4  United  States  v.  Reed,  28  Fed.  482.     17  Nev.  189 ;  McBrown  v.  Morris,  59 
6  United  States  v.  Williams  (Nev.),    Cal.  64. 


/ 


ENTRY — WHAT  LAND  OPEN.  931 

against  the  United  States;  but  it  has  been  jiulicially  said  that 
thoy  have  "initiated  rights"  which  shoukl  be  protected  as 
against  third  parties.' 

An  additional  reason  against  allowing  the  occupied  lands 
to  be  selected  by  the  state,  under  the  grant,  was  the  fraud 
that  had  been  practiced  upon  the  officers  of  the  land  depart- 
ment in  obtaining  the  certificate.  The  court  said :  "  Frauds 
of  this  and  like  character  have  always  been  held  sufficient 
ground  for  vacating  patents  procured  thereby,"  on  the  author- 
it}'  of  the  cases  cited  below.^ 

Land  conditionally  granted  in  presenti  to  a  railroad  com- 
pany is  not  unappropriated  land  subject  to  homestead  only.' 
A  patent  is  void,  if  the  land  has  not  been  offered  at  public 
sale,  and  the  entry  was  private.*  A  patent  on  a  homestead 
entry  of  land  in  an  incorporated  town  is  void.^ 

Adjoining-farm  entity:  Upon  proof  by  the  owner  of  an  un- 
divided half-interest  in  a  farm,  that  a  homestead  entry  on  ad- 
joining land  is  made  for  the  use  of  the  farm,  and  that  all 
requisites  have  been  observed,  the  entry  may  be  passed  for 
patenting.  An  adjoining-farm  entry  of  eighty  acres  of  sur- 
veyed land,  at  the  double  price  required,  may  be  secured  by 
one  who  already  owns  eighty  on  which  he  resides.  Alto- 
gether, a  settler  cannot  have  homestead  in  more  than  a  hun- 
dred and  sixty.  He  is  not  obliged  to  eke  out  his  smaller  farm 
by  taking  enough  additional  to  reach  the  maximum,  but  may 
take  less.  Knowingly  taking  less  is  considered  a  waiver  of 
any  further  right ;  but  taking  less  under  a  misapprehension 
will  not  cut  him  off  from  further  selection.^ 


1  United  States  v.  Williams,  supra;  entry  has  been  perfected  by  patent 

United  States  v.  Stone,  2  Wall.  525 ;  it  n\ay  be  canceled  for  fraud.     Even 

Hughes  V.  United  States,  4  Wall.  232;  though  final  proof  has   been  made, 

Frisbie  v.  Whitney,  9  Wall  187.  this  may  be  done.     Judd  v.  Randall, 

^  Johnson  v.  Towsley,  13  Wall.  72  ;  30  Minn.  12. 

Moore    v.   Robbins,    96  U.    S.    530 ;  3  Blair  Town  Co.  v.  Kitteringham, 

United  States  v.   Minor,    114  U.  S.  43  la.  462. 

234;    United  States  v.    Curtner,  26  <  United  States  v.   Pratt,  18  Fed. 

Fed.  296 ;  United  States  v.  Mullen,  7  708. 

Saw.  460;  Muller  v.  United  States,  ^Burfenning  v.   Railroad  Co.,   46 

118  U.   S.    271 ;     Moffat    v.    United  Minn.  20. 

States,  112  U.  S.  24.  Before  a  settler's  6  Copp's  Land  Laws,  pp.  393-5. 


932  FEDERAL   HOMESTEADS. 

§  4.  Application  and  Settlement. 

Affidavit:  The  applicant  must  make  affidavit  before  the 
register  or  receiver,  at  the  land  office  of  his  district,  that  ho 
is  of  age,  or  that  he  is  the  head  of  a  family,  or  that  he  has 
served  in  the  army  or  navy  of  the  United  States  for  the  re- 
quired time.  He  must  also  make  oath  that  the  application  is 
for  his  own  benefit  exclusively,  and  that  the  entry  is  for  act- 
ual settlement  and  the  cultivation  of  the  land.  lie  must  also 
pay  a  fee :  five  dollars  for  the  entry  of  eighty  acres  or  less ; 
ten  for  an  entry  of  more.^ 

Setilement  actual:  A  claimant  must  actually  and  personally 
make  a  settlement  upon  the  land,  to  avail  himself  of  the  law. 
If  he  has  employed  another  to  make  improvements  for  him, 
who  wrongfully  avails  himself  of  the  situation  and  claims 
homestead  in  the  land,  he  has  no  action  of  damages  against 
such  agent,  because  the  principal  had  acquired  no  rights  in 
the  land,  and  the  action  of  the  agent  did  not  amount  to  a 
legnl  fraud.'^  On  the  other  hand,  the  pre-emptor  cannot  ac- 
quire homestead  right  for  another.  He  has  no  right  which 
he  can  convey,  acquired  by  pre-emption  only.  He  cannot  sell 
his  improvements  to  a  purchaser  who  becomes  the  occupant 
of  the  land  so  as  to  convey  any  homestead  right  or  to  cause 
the  homestead  character  to  attach  to  the  land.^  So,  if  public 
lands  have  been  certified  to  the  state.'* 

A  settler's  possessory  claim  was  sold  by  the  sheriff  under 
execution.  The  settler  subsequently  entered  the  land  as  home- 
stead under  act  of  congress,  and  was  then  adjudged  to  have 
acquired  from  the  "paramount  proprietor"  a  right  and  inter- 
est not  existing  in  him  at  the  date  of  the  sheriff's  sale,  which 
vested  in  him  the  right  of  possession  so  that  he  could  not  bo 
ejected  by  the  purchaser  at  the  sheriff's  sale.*  Meanwhile  the 
purchaser  was  allowed  the  rents  and  profits.  The  court  con- 
ceded that  the  sheriff's  deed  had  transferred  all  the  interest 
the  settler  had  at  the  time.     It  could  convey  no  more.^ 

1  R,  S.,  §  2390.  road  Co.  v.  Fremont  County,  9  Wall. 

2  Walker  v.  Stone,  48  la.  93.  89 ;  Railroad  Co.  v.  Smith,  9  Wall.  95. 
3De  Land  v.  Day.  45  la,  37.  ^  Emerson  v.  Sansome,  41  Cal.  553. 
4  Bellows  V.  Todd,  3i  la.  18;  Rail-  6  Freeman  v.  Caldwell.  10  Watts,  9; 

England  v.  Clark,  4  Scam.  48G. 


APPLICATION   AND   SETTLEMENT.  933 

Valid  possession:  A  valid  entry  gives  the  right  of  posses- 
sion as  against  a  prior  wrongful  possessor,  though  the  latter 
may  not  be  disturbed.  One  who  has  made  entry  and  obtained 
actual  possession  cannot  be  ejected  by  a  former  occupant 
whose  possession  was  illegal.'  IMere  occupancy  of  the  land  by 
one  who  has  purchased  the  improvements  made  upon  it  by  a 
pre-emptor  cannot  convert  it  into  a  homestead.^  Mere  filing 
upon  a  piece  of  land  creates  no  ownershi[).* 

The  possessory  right  must  be  exclusive;  therefore  no  home- 
stead entry  can  be  made  by  tenants  in  common.* 

The  right  of  pre-emption  can  be  acquired  and  exercised  by 
individual  persons  only  —  not  by  partnerships.  It  is  for  the 
benefit  of  the  applicant  and  not  for  others.*  The  right  of 
homestead  is  limited'to  individuals  to  the  exclusion  of  firms 
and  tenants  in  common,  for  the  same  reasons.  There  is  an 
exception  in  favor  of  the  heirs  of  a  deceased  settler.  The 
heirs  of  deceased  parents  take  as  tenants  in  common,  and,  as 
such,  may  perfect  a  homestead  entry  by  making  final  proof. 
They  may  thus  obtain  the  patent  to  which  their  parents,  or 
either  of  them,  would  have  become  entitled  had  not  death 
prevented." 

Commutation:  A  homestead  settler  may  pay  the  minimum 
price  for  the  land  he  has  entered,  during  the  five  years  required 
for  his  occupancy  under  the  homestead  provision,  and  obtain 
a  patent  as  a  pre-emptor  upon  compliance  with  the  other  requi- 
sites.'^ By  doing  so,  he  virtually  makes  an  original  entry :  so 
a  judgment  in  ejectment  rendered  before  the  commutation 
does  not  prevent  him  from  proving  his  title  under  the  com- 
mutation.^ The  claimant  dving  before  the  expiration  of  the 
five  years  period,  his  widow  may  commute  the  entry.* 

1  Goodwin  v.  McCabe,  75  Cal.  584  Hosnier  v.  Duggan,  56  Cal.  261 ;  Davis 

2De  Land  v.  Day,  45  la.  37.  v.  Scott,  56  Cal.  165.  Compare  Emer- 

sSchooIfield  v.  Houle,  13  Colo.  394.  son  v.  Sansome,  41  Cal.  553. 

<Reinhart   v.    Bradshaw,   19    Nev.  5U.  S.   Rev.   Stat.   ^§  2263,  2290; 

355 ;  Nickals  v.  Winn,  17  Nev.  188 ;  Copp's  Land  Laws,  56 ;  Miller  v.  Lit- 

Atherton  v.  Fowler,  96  U.  S.   513;  tie,  47  Cal.  350;  Oaks  v.  Henton,  44 

Hosmer  v.  Wallace,   97    U.  S.  575;  la.  116. 

Trenouth  v.  San  Francisco,  100  U.  S.  ecrumb  v.  Hambleton,  86  Mo.  501. 

251 ;  Smelting  Co.  v.  Kemp,  104  U.  S.  'R,  S.,  §  2301. 

647;  Frisbie  v.  Whitney,  9  Wall.  193;  8  Thrift  v.   Delaney  (Cal.),   10  Pac. 

Johnson   v.  Towshy.    13    Wall.   72;  475. 

Cowell  V.   Lammers,   10  Saw.    246;  » Perry  v.  Ashby,  5  Neb.  291. 


934:  FEDERAL   HOMESTEADS. 

Abandonment:  Abandonment  of  the  land  for  a  period  of  six 
months  or  more,  after  filing  the  affidavit  and  making  entry, 
causes  it  to  "  revert  to  the  government,"  in  the  language  of 
the  statute,  though  it  rather  remains  the  property  of  the  gov- 
ernment, since  the  title  has  never  passed.  The  settler  forfeits 
all  his  present  and  prospective  rights.^ 

Proof  of  the  abandonment  to  the  satisfaction  of  the  register, 
made  after  notice  to  the  settler  giving  him  opportunity  to 
contest  the  charge  of  non-occupancy  for  the  time  stated,  is 
necessary  to  enable  that  officer  to  act  in  the  premises.^ 

The  time  for  the  commencement  of  residence  may  be  twelve 
months  from  tlie  date  of  the  application,  when  allowed  by  the 
proper  officer  for  "  climatic  reasons."  * 

The  statutes  allow  the  rule  concerning  six  months'  absence 
to  be  relapsed  when  crops  have  been  greatly  injured  or  de- 
stroyed by  grass-hoppers.^ 

The  homestead  is  not  necessarily  abandoned  by  the  husband's 
desertion  of  it  and  his  wife  and  family  who  reside  thereon. 
She  becomes  the  head  of  the  family  under  such  a  circumstance, 
and  the  entry  will  not  be  canceled  to  her  injury.* 

§  5.  Soldiers'  and  Sailors'  Homesteads. 

How  secured:  A  person  in  the  military  or  naval  service, 
whose  family,  or  some  member  of  it,  resides  on  land  which  he 
wishes  to  enter,  on  which  settlement  and  improvement  have 
been  made  in  good  faith,  may  make  the  necessary  affidavit 
before  his  commanding  officer.  This  affidavit,  when  filed  with 
the  register  by  the  wife  or  other  representative  of  the  appli- 
cant, shall  be  as  efi'ective  as  though  sworn  before  that  officer, 
if  the  fees  and  commissions  are  paid.^  So,  an  applicant  may 
make  his  affidavit  before  the  clerk  of  his  county,  and  have  it 
transmitted  to  the  register  or  receiver,  if  because  of  distance, 
bodily  infirmity  or  other  good  cause  he  cannot  attend  at  the 
land  office  of  the  district  where  the  land  is  situated.  lie  must 
have  made  the  necessary  settlement  and  improvement,  how- 
ever ;  and  must  send  the  legal  fees  and  commissions  to  the  regis- 
ter and  receiver .''    Wilfully  false  swearing  to  the  excusatory 

IR.  S.,  §  2297.  «>  1  Copp's  Land  Laws,  p.  364. 

nh.  6R.  s.,  §2293. 

3  Act  March  3,  1881.  'R  S.,  §  2294 

4  Gould  &  T.'s  Notes  on  R.  S.,  p.  531. 


soldiers'  and  sailors'  homesteads.  935 

facts  of  an  affidavit,  by  an  applicant,  is  perjury.'  And  this  is 
so,  thou^'h  he  swear  before  the  clerk  of  a  county  other  than 
that  in  which  the  land  claiined  is  situated,  accordinjr  to  the 
last  cited  section  of  the  homestead  act.^ 

What  service:  Fourteen  days'  service  in  the  army  or  navy  of 
the  United  States  during  war,  legally  rendered,  followed  by  an 
honorable  discharge,  will  relieve  from  the  condition  that  the 
applicant  for  homestead  benefit  must  be  twenty-one  years  of 
age.' 

Ninety  days  of  such  service  to  the  United  States,  with  such 
discharge,  entitle  the  soldier  or  sailor  who  has  remained  loyal 
to  the  government,  to  a  patent  to  one  hundred  and  sixty  acres 
of  the  })ublic  land.  He  has  six  months,  after  locating  his 
homestead  and  tiling  his  declaration,  within  which  to  make 
his  entry  and  to  begin  to  improve* 

The  rules  requiring  occupancy  and  limiting  the  quantity  of 
land,  under  the  general  law,  are  not  applicable  to  the  honor- 
ably discharged  soldier  or  sailor;  he  is  subject  only  to  the  spe- 
cial provisions  relative  to  him,  in  these  respects.^ 

The  time  he  has  spent  in  the  service  is  counted  as  part  of 
that  required  for  residence;  the  terra  of  enlistment  is  also 
credited  upon  the  time,  if  he  has  been  discharged  in  conse- 
quence of  wounds  or  disability  incurred  in  the  line  of  duty ; 
but  there  must  be  actual  occupancy  of  a  year  at  least.^ 

Soldier'' s  childre/i:  The  right  of  a  deceased  soldier's  chil- 
dren, to  locate  and  enter  eighty  acres  on  the  public  domain  as 
.  an  additional  homestead,  may  be  sold  and  assigned  as  personal 
property.     The  guardian  of  such  children  may  sell  this  right, 
in  their  behalf,  to  a  third  person. 

Justice  Brewer,  in  a  case  in  which  he  declared  this,  said: 
"This  right  to  enter  and  locate  eighty  acres  was  a  thing  of 
value  —  something  which  enlarged  the  estate  of  the  minors  — 
was  property.  It  was  personal  property,  going  with  them 
where  they  went;  could  be  exercised  and  enjoyed  anywhere; 
did  not  descend  to  the  heir ;  was  not  attached  to  any  particu- 
lar tract  of  land ;  was  therefore  neither  permanent,  fixed  nor 

1  United  States  v.  Hearing,  26  Fed.  5  Rose  v.  Lumber  Co.,  73  Cal.  385 ; 
744.  R  S.,  §  2306. 

2  lb.  «  R.  S.,  §  2305. 
s  R  S.,  §  2300.                                           *  R.  S.,  g  2304. 


•toO  FEDERAL    HOMESTEADS. 

iiniiiovubie.  It  was  a  right  of  selection  and  taking.  Like  all 
propcrt}',  it  was  the  subject  of  sale.  The  right  to  sell  property 
need  not  in  terms  be  granted ;  it  exists  if  it  is  not  in  terms 
withheld.  To  preserve  the  Indians'  litle,  an  express  restric- 
tion is  inserted  in  the  patent.  The  same,  or  something  ccjuiv- 
alent,  is  always  necessary  to  stay  the  power  of  disposal  which 
attends  the  ownership  of  property.  When  this  right  has  been 
exercised,  the  location  and  entry  made,  who  would  doubt  the 
right  to  sell  the  land?  Yet,  why  should  the  right  to  sell  exist 
after  the  entry  and  not  before?  Congress  has  placed  no  re- 
striction—  who  may?  It  must  be  borne  in  mind  that  this  is 
not  a  case  in  which  there  is  to  be  future  consideration  or  future 
duty.  It  is  personal  in  tliat  only  they  of  a  certain  class  can 
avail  themselves  of  the  gift.  It  is  not  personal  in  the  sense 
that  future  services  or  future  considerations  are  imposed. 
Services  already  rendered  during  the  war  are  the  consideration. 
The  homestead  duty  of  occupation  or  improvement  has  already 
been  performed.  It  amounts  simply  to  this:  In  view  of  what 
has  been  done,  congress  makes  this  gift.  It  places  no  restric- 
tions on  the  donee  but  leaves  him  to  use  the  gift  as  he  sees  fit. 
Why  may  he  not  sell  it?  I  see  no  satisfactory  reason  to  the 
contrary."  ^ 

§  6.  Executive  Acts. 

By  land  officers:  Entrj''  is  allowed  by  action  of  the  register 
and  receiver  of  the  land  office.  Their  action  may  be  super- 
vised b}'^  the  commissioner,  and  his  decision  may  be  affirmed 
or  reversed  by  appeal  to  the  secretary  of  the  interior.  De- 
cisions of  the  land  officers  on  the  facts  when  no  question  of 
fraud  IS  involved  are  not  reviewable  by  the  courts;  but  the 
rule  is  otherwise  as  to  questions  of  law.^  A  decision  by  the 
secretary  on  a  survey  is  not  reviewable  by  the  courts  unless 
there  is  something  out  of  the  ordinary  requiring  their  inter- 
position.* While  he  may  pass  finally  on  certain  matters  of 
fact,  he  can  exercise  no  judicial  power;  while  he  may  make 

»  Mullen  V.  Wine,  26  Fed.  206.  Co.,  128  U.  S.  673 ;  Lee  v.  Johnson, 

«Hosmer  v.  Wallace,  47  Cal.  461;  116  U.  S.  48.     See  Hill  v.  Miller,  36 

Johnson   v.    Towsley.    13    Wall.    72;  Mo.  182. 

United  States  v.  Iron  Silver  Mining  3  New  Orleans  v.  Paine,  49  Fed.  13, 


EXECUTIVE    ACTS.  037 

rules  of  an  executory  character,  be  cannot  legislate.'  He  has 
no  right  —  and  congress  can  confer  on  him  no  right  —  to  im- 
pose oaths  and  render  their  false  taking  a  criminal  offense.^ 

It  is  held  that  only  when  the  law  has  been  misconstrued  by 
the  executive  officers  in  applying  it  to  the  estal)Ushed  facts, 
and  have  consequently  denied  parties  their  just  riglits,  or 
when  misrepresentations  and  fraud  have  misled  those  olHcers 
and  caused  the  rendition  of  wrong  decisions,  that  courts  can 
interfere  and  set  aside  their  action  upon  proper  ])roceeding.' 

It  has  even  been  said  that  the  decision  of  the  secretary  of 
the  interior  upon  "a  mixed  question  of  law  and  fact"  is  final.'' 
If  law  be  the  predominant  ingredient  in  the  compound,  would 
not  the  question  be  reviewable  by  the  courts  upon  proper 
issue  joined?  The  court  which  took  this  view  in  the  last 
cited  case  referred  ajiprovingly  to  those  of  the  preceding 
note,  but  gave  no  authorities  on  the  finality  of  the  secretary's 
decision  of  a  mixed  question  of  law  and  fact.  The  rule  was 
stated  as  a  settled  one ;  the  statement  was :  "  The  decisions  of 
the  secretary  upon  the  facts  of  a  case  and  upon  mixed  ques- 
tions of  law  and  fact  are  always  final,  and  the  decisions  of  the 
courts  have  generally  sustained  the  secretary  in  the  absence 
of  positive  fraud  or  a  mistake  wherein  the  unsuccessful  party 
has  been  denied  some  right  which  materially  affected  his  in- 
terests, or  where  misconstruction  of  the  law  has  worked  a 
hardship  and  injury  upon  an  interested  party."  The  latter 
part  of  this  excerpt  seems  a  little  vague,  since  the  courts  can- 
not know  of  the  denial  of  rights  w^hen  the  officer's  decision  is 
final  —  not  reviewable. 

Certificate:  The  patent  cannot  be  given  till  five  3'ears  after 
the  entry.  When  that  time  has  expired  or  within  two  years 
thereafter,  the  homestead  holder  may  make  his  final  proof  that 
he  has  occupied  and  cultivated  the  land  for  five  years  from 
the  filing  of  the  affidavit;  that  none  of  it  has  been  alienated 
except  as  permitted  by  section  2288  of  the  Eevised  Statutes, 

1  The  department  regulations  must  United  States  v.  Jlinor,  114  U.  S.  233: 
be  reasonable,  or  they  will  be  held  Marquez  v.  Frisbie.  101  U.  S.  473; 
void.     Anchor  v.  Howe,  50  Fed.  366.  United  States  v.  Throckmorton,  98 

2  United  States  v.  Bedjxood,  49  Fed.  U.  S.  61 ;  Moore  v.  Rohbius,  96  U.  S. 
54.  530  ;  Johnson  v.  Towsley,  13  Wall.  72. 

3  Quinby  v.  Conlan,  104  U.  S.  420 ;  ^  Porter  v.  Bishop,  25  Flu.  749,  759. 


038  FEDERAL    HOMESTEADS. 

and  that  ho  will  bear  true  allegiance  to  the  government  of  the 
United  States.  Upon  making  this  proof,  he  is  entitled  to  a 
patent. 

In  the  event  of  his  dying  between  the  time  of  making 
affidavit  and  entry,  and  the  time  for  making  proof,  his  widow 
may  act  in  his  stead.  In  case  of  her  death  during  this  time, 
his  heirs  or  devisees  may  act.  When  a  widow  has  made  for 
herself  the  original  affidavit  and  entry  and  has  died  before 
making  final  proof  but  within  the  time  allowed  therefor,  her 
heirs  or  devisees  must  prove  by  two  witnesses  that  she  or  they 
have  resided  upon  the  land  and  cultivated  it  for  five  years  from 
the  filing  of  her  affidavit,  and  must  make  the  asseverations  of 
non-alienation  and  allegiance  as  above.^  The  settler  may 
shorten  the  time  two  years  by  planting  trees  as  prescribed.^ 

The  proofs  and  oath  may  be  made  before  the  judge  of  any 
court  of  record  of  a  county  or  territorial  district  where  the 
land  is  situated  ;  or  before  the  clerk  in  the  absence  of  the  judge. 
The  effect  is  as  though  they  were  made  before  the  register  or 
receiver  of  the  land  district.  False  swearing  to  material 
matter  of  proof,  in  the  testimony  of  a  witness,  or  in  the  oath 
of  the  applicant,  is  perjury.' 

Public  lands  become  private  when  a  certificate,  due  and 
duly  issued,  has  been  obtained  by  a  citizen.  Not  merely  cash 
entries,  but  pre-emption  and  homestead  entries,  are  subject  to 
this  rule.  Soon  as  the  final  certificate  recognizes  the  title  of 
the  homestead  in  the  citizen,  the  government  loses  its  title ;  the 
land  ceases  to  be  public;  the  grant  of  it  to  a  railroad  corpora- 
tion or  any  other  party,  by  congress,  would  be  a  nullity.* 

Segregation:  While  a  homestead  entry  is  of  recoi'd  and  is 
held  valid  by  the  land  officers  whose  decision  has  not  been 
overruled,  the  land  is  segregated  from  the  public  domain  and  is 
not  subject  to  further  grant  by  congress.  It  has  already  been 
appropriated  and  cannot  be  again  appropriated  while  a  subsist- 
ing entry  remains  in  force.  It  has  been  severed  from  the  rest  of 
the  government  lands,  and  therefore  will  not  be  embraced  in 
any  general  terms  of  appropriation,  though  there  be  no  special 
exception    expressed   in   its   favor.     This  has  been  so  often 

1  R.  S.,  §  2391.  4  Witherspoon  v.  Duncan,  4  Wall. 

2  §  2317.  210 ;  Carroll  v.  Safford,  3  How.  441. 

3  §2391. 


EXECUTIVE    ACTS.  939 

averred  "that  it  may  now  be  regarded  as  one  of  the  funda- 
mental principles  underlying  the  land  system  of  this  country."  ' 

The  transition  of  title  from  public  to  private;  from  govern- 
ment ownership  to  that  of  the  homestead  settler,  is  not  such  as 
to  preclude  reversion  for  fraud  or  any  ground  that  would  alfect 
any  title.  There  may  be  such  defect  as  to  defeat  the  con- 
firmation in  the  land  office;  there  may  be  omission  of  requi- 
sits  resulting  in  forfeiture;  there  may  have  been  fraud:  so 
the  title  may  be  declared  void  in  a  judicial  proceeding. 

When  the  entry  has  been  canceled  or  forfeited,  the  land  re- 
verts to  the  United  States  and  is  treated  as  a  part  of  the  public 
domain,  never  segregated  therefrom;  so  it  is  now  again  sub- 
ject to  original  entry .^ 

Cancellation  of  entry:  "  Under  the  homestead  law,  three 
things  are  needed  to  be  done  in  order  to  constitute  an  entry 
on  public  lands:  First,  the  applicant  must  make  an  affidavit 
setting  forth  the  facts  which  entitle  him  to  make  an  entry; 
second,  he  must  make  a  formal  application ;  and,  third,  he  must 
make  payment  of  the  money  required.  When  these  three 
requisites  are  complied  with,  and  the  certificate  of  entry  is  ex- 
ecuted and  delivered  to  him,  the  entry  is  made  —  the  land  is 
entered.  If  one  of  these  integral  parts  of  an  entry  is  defect- 
ive; that  is,  if  the  affidavit  be  insufficient  in  its  showing,  or  if 
the  ap[)lication  itself  is  informal,  or  if  the  payment  is  not  made 
in  actual  cash,  the  register  and  receiver  are  justified  in  reject- 
ing the  application.  But  if,  notwithstanding  these  defects,  the 
application  is  allowed  by  the  land  officers,  and  a  certificate  of 

1  Hastings   v.   Whitney,    132  U.  S.  cancellation  for  abandonment,  it  had 

357,  360 ;  Wilcox  v.  Jackson,  13  Pet.  passed  back  into  the  mass  of  public 

498.  lands  and  was  not  brought  within 

2 Kansas  Pac.    Ry.   v.    Dunmeyer,  the    grant;    and,   upon    that  claim, 

113  U.  S.  629.     "  A  homestead  claim  ousted  the  defendant  in  error,  who 

had    been   made  and   filed    by   one  afterwards  brought  his  action  against 

Miller,  and  recognized  by  a  certificate  the  railroad  company  for  a  breach  of 

of  entry,  before  the  line  of  the  com-  covenant,  obtaining  a  judgment  in 

pany's    road    was    located.      Subse-  the  court  below,   which   was   after- 

quently  to  the  location  he  abandoned  wards  affirmed  in  this  court."     Mr. 

his  entry  and  took  a  title  under  the  Justice  Lamar's  statement  iu  132  U.S. 

railroad  company,  and  his  homestead  361-2.     The  homestead  was  held  to 

entr}'  was  canceled.    Dunmeyer  [the  have    reverted    to   the    government 

defendant  in   the  above  cited  case]  upon  its  abandonment  by  the  first 

then    entered    the    land    under  the  claimant  —  not  to  the  railroad  com- 

homestead  law,  claiming  that,  by  the  pany  by  virtue  of  their  grant. 


040  FKDEUAL    HOMESTEADS. 

entry  is  made  of  record,  such  entry  may  be  afterwards  can- 
celed, on  account  of  these  defects,  by  the  commissioner,  or, 
on  ai)peal,  by  the  secretary  of  the  interior,  or,  as  is  often  the 
practice,  the  entry  may  be  suspended,  a  hearing  ordered,  and 
the  part}'-  notified  to  show,  by  supplemental  proof,  a  full  com- 
pliance with  the  requirements  of  the  department;  and,  on 
failure  to  do  so,  the  entry  may  then  be  canceled.  But  these 
defects,  whctlicr  they  be  of  form  or  substance,  by  no  means 
render  the  entry  an  absolute  nullity."  ' 

The  holder  of  the  certificate  has  been  held  to  have  only  a 
determinable  fee,  subject  to  termination  by  cancellation  of 
the  certificate yb;*  cause,  before  the  issue  of  the  i)atent,  by  ac- 
tion of  the  commissioner.^  And,  before  patenting,  it  is  held 
that  the  general  land  office  has  power  to  confirm  or  cancel  an 
entry  at  any  time ;  "^  but  this  general  holding  has  been  some- 
what modified  and  explained.* 

Tlie  rule  is  that  there  can  be  no  cancellation  of  the  certificate 
except  for  cause  —  such  as  shows  its  issue  to  have  been  erro- 
neous. AVhen  dulij  issued,  to  a  homestead  occupant  who  is 
entitled  to  it,  it  is  evidence  of  his  equitable  title  and  his  right 
to  the  patent  evidencing  his  legal  title:  so  the  government 
itself  is  powerless  to  take  it  away  merely  at  will.^ 

§  7.  Judicial  Action. 

Judicial  remedies:  While  the  executive  officers  are  discharg- 
ing their  duties,  imposed  by  law,  in  disposing  of  the  public 

1  Hastings  v.  Whitney.  133  U.  S.  354;  Jones  v.  Tninter,  15  Minn,  512; 
363-4:  Newhall  v.  Sanger,  93  U.  S.  McCuev.  Smith,9  Minn.  237  ;  Randell 
761.     See  cases  cited  by  the  court  in    v.  Edert,  7  Minn.  359. 

Hastings  v.    Whitney ;    Graham    v.  ^  Cady  v.    Eighmey,    54    la.    615 ; 

Hastings,  1  Land  Dec.  380 ;  St.  Paul,  Sillyman  v.  King,  36  la.  207 ;  Arnold 

etc.   V.   Forseth,   3   Land  Dec.   457 ;  v.  Grimes,  3  la.  1 ;  Moyer  v.  McCul- 

South  Minnesota,  etc.  v.  Gallipean,  3  lough,  1  Ind.  339 ;  Boyce  v.  Dauz,  29 

Land  Dec.  1G6,  and  others.    See,  as  to  Mich.  146 ;  Brill  v.  Styles,  35  111.  305 ; 

the  right  of  the  secretary  of  the  in-  Streeter  v.   Rolf,  13  Neb.  388;    Cor- 

terior  to  set  aside  a  survey.  Knight  nelius  v.  Kessel,  58  Wis.  237;  Aldrich 

V.  U.  S.  Land  Ass'n,  143  U.  S.  161.  v.    Aldrich,   37    III.    33;    O'Brien   v. 

2  McLane  v.  Bovee,  35  Wis.  28 ;  Perry,  28  Mo.  500 ;  Perry  v.  O'Han- 
Trulock  V.  Taylor,  26  Ark.  54.  Ion,  11  Mo.  585;  Morton   v.  Blanken- 

3  Gray  v.  Stockton,  8  Minn.  472;  ship,  5  Mo.  343 ;  American  Mortgage 
Camp  V,  Smith,  2  Minn.  131 ;  State  Co.  v.  Hopper.  48  Fed.  47 :  Smith  v. 
V.  Batclielder,  5  Minn.  178.  Ewing,  11  Sawy.  56;  Wilson  v.  Fine, 

*  Sharon   v.   Wooldrick,    18   Minn.     14  Savvy.  234. 


JUDICIAL    ACTION.  941 

lands  under  tlie  homestead  and  pre-emption  acts,  courts  will 
not  attempt  to  control  them  by  injunction  or  mandavnus} 
But  when  a  patent  is  ready  for  delivery,  mandamus  will  be 
issued  to  compel  the  proper  officer  to  deliver  it  to  the  person 
entitled  to  it.' 

It  is  held  that  courts  cannot  investigate  the  legality  of  the 
title  to  land  on  the  complaint  that  the  settler  has  been  de- 
prived of  it  by  the  fraud  and  ]>erjuiy  of  a  contestant,  until 
the  title  has  been  vested  in  a  party  subject  to  their  jurisdic- 
tion.' Appeal  lies  to  higher  executive  officers  when  subordi- 
nate ones  are  charged  by  interested  parties  to  have  erred  in 
the  exercise  of  their  discretionary  and  other  powers. 

Courts  will  not  interfere  when  a  question  is  pending  before 
the  land  department  involving  the  right  to  enter  and  purchase 
land.* 

Courts  on  question  of  fraud:  There  can  be  no  doubt  of  the 
power  of  the  courts  to  pass  upon  questions  of  title  to  home- 
stead lands,  to  inquire  into  questions  of  fraud  alleged  to  have 
been  perpetrated  by  or  upon  the  land  officers,  and  to  settle 
questions  between  litigants  arising  upon  those  officers'  rulings. 
Courts  will  not  interfere  when  a  decision  of  such  executive 
and  quasi-]Vi(!i\c\3l  officers  appears  to  have  been  rendered  reg- 
ularly; that  is,  errors  of  judgment  upon  the  facts  of  a  con- 
tested case  are  generally  not  reviewable  by  the  courts.  Kewly- 
discovered  evidence  may  render  it  the  duty  of  courts  to  give 
relief.  Ordinarily,  land-office  decisions,  on  matters  of  fact,  in 
contested  cases,  are  final.'' 

1  Mavquez  v.  Frisbie,  101  U.  S.  473 ;  646 ;  Johnson  v.  Towsley,  13  Wall.  72 ; 
The  Secretary  v.  McGarrahan,  9  Minnesota  v.  Bachelder,  1  Wall.  109 ; 
Wall.  298 ;  Litchfield  v.  The  Regis-  Lindsey  v.  Hawes.  2  Black,  554 ;  Siiep- 
ter,  9  Wall.  575 ;  Gaines  v.  Thomp-  ley  v.  Cowan,  91  U.  S.  330 ;  French  v. 
son,  7  Wall.  347;  United  States  v.  Fyan,  93  U.  S.  169;  Moore  v.  Robbins, 
The  Commissioner,  5  Wall.  563;  96  U.  S.  530 ;  Marquez  v.  Frisbie,  101 
Koehler  v.  Barin,  25  Fed.  161.  U.  S.  473 ;  Vance  v.  Burbank,  101  U. 

2  United  States  v.  Schurz.  102  U.  S.  S.  514;  Quinby  v.  Conlan,  104  U.  S. 
378.  See  Houghton  v.  Hardenberg,  420;  Smelting  Co.  v.  Kemp,  104  U.  S. 
53  Cal.  181;  Cruz  v.  Martinez,  53  636;  Steel  v.  Smelting  Co.,  106  U. 
Cal.  239 ;  Sands  V.  Davis.  40  Mich.  14.  S.     447;     Baldwin    v.     Stark,      107 

3  Empey  v.  Plugert,  25  N.  W.  560  U.  S.  463 :  Rector  v.  Gibbon,  111  U.  S. 
(Wis.).  276 ;  Butterworth  v.  Hoe,  1 12  U.  S.  50 ; 

*  Casey  v.  Yasser,  50  Fed.  258.  United  States  v.  Minor,  114  U.  S.  233 ; 

*  Warren  v.  Van  Brunt,  19  Wall.    Van  Saut  v.  Butler,  19  Neb.  351 ;  Kin- 


94:2  FEDERAL    HOMESTEADS. 

If  there  has  been  fraud  or  mistake  in  the  issue  of  the  patent, 
or  in  procuring  its  issue,  the  title  to  the  homestead  is  not  com- 
plete beyond  recall.  The  patent  may  be  vacated  by  judicial 
action.'  It  may  be  impeached,  by  action  at  law,  on  the  ground 
that,  at  the  time  of  final  proof,  mineral  deposits  were  known 
to  exist  in  or  upon  the  land.^  The  fact  of  the  existence  of 
mineral  dej)osits  may  be  shown  at  the  time  final  proof  is 
offered,  and  the  issue  of  the  patent  may  thus  be  defeated.' 

§  8.  Settlers'  Rights  Relative  to  Railroads. 

Claims  in  conflict:  Homestead  entries  of  record,  prima 
facie  valid,  are  held  to  be  among  the  exceptions  to  a  grant  in 
aid  of  railroad  construction,  as  those  to  which  it  "shall  appear 
.  .  .  that  the  right  of  pre-emption  or  homestead  settle- 
ment has  attached."  * 

What  has  been  granted  already  to  a  settler,  on  condition 
that  he  comply  with  the  statutory  requisitions,  cannot  be 
granted  to  another  while  the  settler  is  in  occupancy  and  is 
performing  the  conditions  required  of  him. 

A  homestead  entry,  under  the  act  of  congress  authorizing  it,* 
having  been  canceled  by  the  proper  authorities,  the  homestead 
was  afterwards  patented  to  the  person  making  the  entry,  by 
virtue  of  a  subsequent  act  of  congress.^  Meanwhile,  a  rail- 
road company  had  come  into  possession  of  the  land,  claiming 
title;  and  the  wife  of  the  settler  having  made  with  it  a  con- 
tract to  purchase  the  land,  joined  with  her  husband  in  assign- 
ing the  contract  to  secure  his  obligations;  and  the  assignee 
foreclosed  and  sold  her  interest.  After  the  husband  had  se- 
cured the  patent  for  the  land  on  his  original  entry,  he  was 
held  to  hold  title  paramount  to  that  held  by  the  purchaser  at 
the  sale.''     He  signed  the  assignment  with  her  at  a  time  when 

ney  v.  Degman,  13  Neb.  237 ;  Rush  v.  3  lb.;  R.  S.,  §  2258. 

Valentine,   12  Neb.    513 ;    Aiken    v.  ♦  Hastings,  etc.  R.  Co.  v.  Whitney, 

Ferry,  6  Saw.  79 ;  Hess  v.  Bolinger,  48  84  Minn.  538,  in  exposition  of  Act  of 

Cal.  849 ;  Rutledge  v.  Murphy,  51  Cal.  Congress,  July  4, 1866,  granting  lands 

888;  Powers  v.  Leith,  53  Cal.   711;  to  the  state  of  Minnesota;  14  U.S. 

Dilla  V.  Bohall,  53  Cal.  709;  Mace  v.  St.   at  Large,  87;   U.   S.  Rev.   Stat., 

Merrill,  56  Cal.  554.  §§  2289,  2290,  2293 ;  Bardon  v.  North- 

1  United  States  v.  Missouri,  etc.  R  ern  Pac.  R.  Co.,  12  Sup.  Ct.  Rep.  856. 
Co.,  141  U.  S.  358.  5  Act  of  May  20,  1862. 

2  Kansas  City  Mining,  etc.  Co.  v.  **  Act  of  April  21,  1876. 

Clay  (Arizona),  29  Pac.  9.  v  Kraft  v.  Baxter,  38  Kas.  351. 


settler's    RIOnTS    RELATIVE    TO    RAILROADS,  943 

his  rights  under  the  entry  had  been  denied  by  the  proper  fed- 
eral authorities,  without  any  design  to  deceive,  so  far  as  the 
facts  show.  ITis  debt,  for  which  the  wife's  contract  to  pur- 
chase was  assigned,  and  upon  which  it  was  foreclosed,  ante- 
dated the  patent.  The  statute  forbids  forced  sale  to  satisfy 
any  debt  contracted  prior  to  the  issue  of  the  patent.  His  title 
to  the  land  was  inchoate  when  the  assignment  was  made,  but 
the  patent  retroacted  so  as  to  protect  his  homestead  right 
from  the  date  of  entry.  The  validity  of  the  entry  depended 
upon  his  having  made  it  for  his  own  benefit,  which  he  was 
bound  to  show  by  his  oath.  He  could  liave  obtained  no  title 
at  all  witliout  coming  within  the  statute  which  offered  him  a 
homestead  —  not  an  interest  which  he  could  vest  in  another  by 
contract  ^vhile  the  title  was  being  perfected. 

As  both  husband  and  wife  signed  the  assignment  by  which 
they  caused  his  debt  to  be  paid  with  the  money  of  the  pur- 
chaser at  the  foreclosure,  they  were  in  duty  bound  to  reim- 
burse him ;  and  doubtless  he  had  a  good  cause  of  action  to 
recover  the  money,  with  no  interposition  of  the  doctrine  of 
caveat  emptor^  since  he  could  not  foresee  that  the  canceled 
entry  would  be  reinstated,  how^ever  much  he  may  have  tried 
to  heed  the  maxim ;  yet  he  had  no  lien  upon  the  homestead. 

Vested  right:  When  a  homestead  claim  has  attached^  sub- 
sequent grants  cannot  dislodge  it. 

The  government  "  limited  its  gifts  to  lands  to  which  a 
homestead  right  had  not  attached.  Whenever  it  accepted  a 
homestead  entry,  its  acceptance  removed  the  land  from  the 
terms  of  the  grant  [to  the  railroad  comj)anyj.  What  should  be- 
come of  the  matter  thereafter,  as  between  the  person  making 
the  entr}^  and  the  government,  was  a  question  that  did  not  af- 
fect the  railway  company.  It  had  no  right  to  inquire.  The 
government  might  have  waived  all  the  informalities  and  de- 
fects in  the  person,  or  in  the  occupation,  and  issued  the  pat- 
ent. Whether  it  did  or  not  was  a  matter  of  which  the  rail- 
road company  could  not  complain.  It  was  enough  for  it  that 
upon  the  face  of  the  records  there  was  an  apparently  valid 
home  entiy,  one  which  the  government  had  recognized,  and 
one  which  it  might  finally  permit  to  ripen  into  a  perfect  title. 
The  homestead  claim,  whether  good  or  bad,  in  the  language 
of  the  act,  attached;  and  that  is  all  the  railroad  company  could 


944  FEDERAL    HOMESTEADS, 

inquire  into.     That  being  settled,  the  land  did  not  pass  under 
this  grant  "  from  the  government  to  the  railroad  company,^ 

If  a  homestead  be  entered  and  then  abandoned,  it  will  not 
be  excepted  from  a  grant  of  land  to  a  railroad  company  of 
which  it  forms  a  part.^ 

Grant  to  a  state:  The  federal  government  having  condition- 
all}' granted  to  a  state — -for  the  purpose  of  aiding  railroad 
construction  —  alternate  sections  of  land  (on  each  side  of  the 
road  line  a  strip  ten  miles  wide),  retaining  the  even-numbered 
sections,  it  was  held  that,  "within  the  indemnity  limits,"  the 
legal  right  to  the  even  sections  continued  to  be  in  the  govern- 
ment-grantor, till  selected.  And  those  sections  w^ere  open  to 
homestead  pre-emption.  Rights  vested  in  pre-emptors,  under 
the  homestead  laws,  were  held  not  subject  to  defeat  by  sub- 
sequent selection  by  the  railroad  company,  even  though  it 
should  obtain  a  patent  therefor.  Such  patent  may  be  can- 
celed b}'^  means  of  a  bill  in  equity.'' 

•  Title  to  a  homestead  being  in  the  United  States  till  the  is- 
suance of  a  patent  to  the  settler,  or  his  becoming  entitled  to 
it,  no  adverse  title  could  be  obtained  by  another  through  the 
operation  of  prescription  or  limitation  laws  of  any  state."* 

Right  of  way:  A  settler  on  the  public  domain,  under  the 
homestead  or  pre-emption  laws,  may  grant  right  of  way  to  a 
railroad  company,  and  transfer  land  for  such  purpose  by  war- 
ranty against  his  own  acts,  as  authorized  by  congress.^  He 
may  do  this  before  the  issue  of  his  patent.^ 

A  federal  homestead,  like  any  other  realty,  may  be  con- 
demned for  road  purposes,  at  any  stage  of  the  settler's  proba- 

1  Mclntyre  v.  Roeschlaub,  37  Fed.  » United  States  v.  Mo.  etc.  R,  Co., 
556,  Brewer,  J.,  construing  "at-  141  U.  S.  358;  12  Sup.  Ct.  Rep.  13. 
tached"  in  13  U.  S.  Stat.,  at  L.,  4  Redfield  v.  Parks,  132  U.  S.  239, 
p.  492  —  the  Union  Pac.  Laud  Grant  244 ;  Lindsey  v.  Miller,  6  Pet.  666 ; 
Act;  Railway  v.  Dunmeyer,  113  U.  Bagnell  v.  Broderick,  13  Pet  436; 
S.  629,  Miller,  J. ;  Sioux  City,  etc.  •  Gibson  v.  Chouteau,  13  Wall.  93, 
Land  Co.  v.  Giffey,  143  U.  S.  40.  101-4 ;   United  States  v.  Thompson, 

2  Young  V.  Goss,  42  Kas.  502,  in  98  U.  S.  486 ;  Rector  v.  Ashley,  6 
which  Kansas  Pac.  R.  Co.   v.  Dun-  Wall.  142. 

meyer,  113  U.  S.  629,  is  distinguished ;  &  Rev.  Stat.,  §  2288. 

Emslie  v.  Young,  24  Kas.  732,  cited ;  e  United    States    v.   Reed,  28  Fed. 

ActofCongress,  March  3, 1863,  donat-  482;  Rube  v.  Sullivan,  23  Neb.  779; 

ing  lands  to  the  state  of  Kansas  to  aid  Union  Pacific  R.  Co.  v.  Watts,  2  Dill, 

railroads,  etc.  310. 


SliTTLEK's    RIGHTS    KELATIVK    TO    RAILEOADS.  945 

tionary  period.  When  it  is  condemned,  he  is  entitled  to  com- 
pensation, whatever  his  interest  may  be.'  Though  not  the 
owner  till  he  has  made  final  proof,  he  is  entitled  to  whatever 
damages  he  may  suffer  by  the  condemnation.  lie  is  treated 
as  an  owner,  though  the  measure  of  damage  is  different  in  his 
case  from  that  of  an  owner.^ 

It  will  be  observed  that  the  settler's  right  to  grant  the  way 
is  purely  statutory.  lie  cannot  alien  or  incumber  his  home- 
stead prior  to  the  patent,  for  other  purposes.  The  general 
homestead  conditions  are  equivalent  to  a  covenant.  And  a 
covenant  against  incumbrances  precludes  the  granting  of  the 
right  of  way  to  a  railroad  company.  Such  grant  of  land 
would  be  a  breach  of  the  covenant,  since  it  is  an  incumbrance.* 

The  general  subject  may  be  illustrated  by  reference  to  the 
homestead  laws  of  the  states.  Eight  of  way  is  an  easement 
of  perpetual  use,  and  is  therefore  almost  equivalent  to  fee- 
simple  title;  it  prevents  the  owner  from  the  exercise  of  do- 
minion. Could  such  an  easement  be  granted  without  molest- 
ing the  enjoyment  of  the  homestead,  there  would  seem  to  be 
no  good  reason  why  a  married  owner  could  not  give  it  with- 
out the  assent  of  the  other  marital  partner,*  since,  in  such 
case,  the  incumbrance  would  not  be  such  as  to  defeat  the  pur- 
pose of  the  law  in  protecting  families  in  their  homes.  It  can 
hardly  be  conceived,  however,  that  a  railroad  can  cross  a 
farm,  or  the  grounds  of  a  town  residence,  without  disturbing 
the  dominion  and  enjoyment  of  the  property.  It  is  held, 
therefore,  that  the  granting  of  right  of  way  by  a  married  man, 
through  his  homestead,  requires  the  consent  of  his  wife.® 
Where  there  is  no  constitutional  or  statutory  requirement 

1  Burlington  R  Co.  v.  Johnson,  38  Herrick  v.  Moore,  19  Me.  313;  Haynes 
Kas.  142.  V.  Young,  36  Me.  557 ;  Lamb  v.  Dan- 

2  Ellsworth,  etc.  R  Co.  v.  Gates,  41  forth,  59  Me.  322;  Pilcher  v.  Atkin- 
Kas.  574.  son,  etc.  R  Co.,  38  Kas.  516;  Kellogg 

3  Mitchell  V.  Warner,  5  Ct  497 ;  v.  Malin.  50  Mo.  496 ;  Barlow  v.  Mc- 
Hubbard  v.  Norton,  10  Ct.  423 ;  Kinley,  24  la.  69 ;  Beach  v.  Miller,  51 
Prichard  v.  Atkinson,  3  N.   H.   335 ;  111.  206. 

Clark   V.   Estate  of  Conroe,   38  Vt.  *  Chicago  &  N.  W.  R  Co.  v.  Swin- 

469 ;  Kellogg  v.  lugersoll,  2  Mass.  97 ;  ney,  38  la.  183. 

Prescott  V.  Trueman.  4  Mass.   627;  &  Pilcher  v.  Atchison,  eta  R  Co., 

Harlow  v.  Thomas,  15  Pick.  68 ;  Pros-  38  Kas.  516. 
cott  V.  Williams,  5  Met  (Mass.)  433 ; 
60 


946  FEDERAL    HOMESTEADS. 

that  her  consent  must  be  established  by  written  evidence, 
other  testimony  will  suffice.' 

AVhere  the  law  allows  the  husband  to  lease  the  homestead 
without  the  consent  of  his  wife,  the  reason  for  his  inability  to 
grant  the  right  of  way  across  it  by  his  individual  act  may  not 
apply ;  ^  but  there  is  difference  between  leasing  for  a  time  and 
granting  right  of  way  without  limit  as  to  duration. 

Government  grant  of  right  of  way:  Though  congress  has 
granted  the  right  of  way  to  a  railroad  company  through  pub- 
lic lands,  it  has  given  no  authority,  and  could  give  none,  for 
the  comjmny  to  run  a  road  through  a  settler's  homestead 
without  first  proceeding  to  have  the  land  condemned  in  the 
usual  way.  Though  no  patent  has  been  issued,  the  homestead 
holder  who  has  performed  the  conditions  of  the  government's 
donation,  or  is  performing  them,  has  rights  which  the  railroad 
company  must  respect.  A  disregard  of  those  rights,  evinced 
by  running  a  road  through  the  homestead,  will  give  right  of 
action  for  trespass  which  the  settler  may  exercise  against  the 
company.''  And  if  a  road  be  operated  through  such  land  while 
the  route  has  not  been  "  definitely  fixed  "  and  a  map  or  pro- 
file of  it  filed  in  the  office  of  the  department  of  the  interior, 
the  trespass  will  be  deemed  continuous.^ 

§  9.  Alienation  Inhibited. 

Sale  in  futuro  illegal:  The  supreme  court  has  decided  that 
a  contract  by  a  homestead  holder  to  convey  his  homestead,  or 
a  part  of  it,  in  future,  when  he  shall  have  acquired  title  from 
the  government,  is  void  as  against  public  policy;  that  such  a 
contract  cannot  be  enforced  notwithstanding  a  valuable  con- 
sideration received  from  the  purchaser  by  the  seller.  Mr.  Jus- 
tice Brewer,  for  the  court,  said :  "  Section  2200  of  the  Revised 
Statutes  provides  that  a  purchaser  applying  for  the  entry  of 
a  homestead  claim  shall  make  affidavit  that,  among  other 
things,  'such  application  is  made  for  his  exclusive  use  and 
benefit,  and  that  his  entry  is  made  for  the  purpose  of  actual 

1  lb.  nitoly  fixed,"  Wood  v.  Railroad,  104 

2  Held  so.  Randall  v.  Texas  Cen-  U.  S.  329 ;  Grinnell  v.  Railroad  Co., 
tral-R.  Co.,  63  Tex.  586.  103  U.  S.  739;  Leavenworth,  etc.  R. 

3  Savannah,  etc.  R.  Co.  v.  Davis,  25  Co.  v.  United  States,  92  U.  S.  733 ; 
Fla.  917.  Schulenberj?  v.  Harriinan,  21  Wall. 

*ib.    (See,  as  to  a  route  being  "defi-    44 ;  Hutchings  v.  Low,  15  Wall.  77. 


ALIENATION    INIIHUTKD.  947 

settlement  and  cultivation,  and  not  either  directly  or  indi- 
rectly for  the  use  or  benefit  of  any  other  person;'  and  sec- 
tion 2291  .  .  .  requires  that  the  applicant  make 'affidavit 
that  no  part  of  such  land  has  been  alienated.'  .  .  .  It  is 
true  that  the  sections  contain  no  express  prohibition  of  aliena- 
tion, ,  .  .  yet  the  homestead  right  cannot  be  perfected  in 
case  of  alienation,  or  contract  for  alienation,  without  perjury- 
.  .  .  Such  a  contract  is  against  public  policy  and  will  not 
be  enforced  in  a  court  of  equity."  '  The  facts  were  that  the 
homestead  enterer  and  his  wife  gave  a  deed  in  1870,  by  which, 
for  valuable  consideration  then  paiil,  they  agreed  to  deed  a 
portion  of  their  homestead  in  1881  (when  they  would  have 
the  patent)  to  the  party  of  the  second  part. 

An  agreement  by  a  homestead  settler,  to  convey  land  when 
right  to  it  shall  have  been  acquired  in  the  future,  being  void, 
is  enforceable  neither  in  equity  nor  at  law.  No  alienation 
can  be  made,  or  validly  agreed  upon,  before  the  completion 
of  the  right  to  the  title.  A  prior  contract  to  convey  is  void 
because  it  is  against  public  policy.^ 

There  can  be  no  completion  of  the  homestead  settler's  right 
before  he  has  complied  with  all  the  conditions  accompanying 
the  governmental  donation.  lie  cannot  have  title,  and  can- 
not be  the  owner  of  his  home,  until  he  has  complied.''  He 
must  prove  occupancy  for  the  requisite  time,  and  also  that  he 
has  not  sold  his  claim.'*  Mere  settlement  upon  the  land  con- 
fers no  property  upon  him,  as  against  the  government.  While 
his  period  of  occupancy  and  his  conformity  to  requirements 
will  be  respected  by  the  government  from  its  incipiency,  and 
while  nothing  will  be  done  to  thwart  his  efforts  to  make  him- 
self a  home  on  the  public  domain,  he  can  have  no  legal  title, 
and  no  legal  right  to  one,  till  he  shall  have  wholly  done  his  part. 

There  is  a  parallel  to  this  in  the  pre-emptor's  case.     Before 

I  Anderson  v.   Carkins,   135  U.  S.  2  Cox  v.    Donnelly,  34  Ark.    762; 

483;  Mellison  v.  Allen,  30  Kas.  382;  Seymour  v.    Sanders,    3  Dill.    437; 

Brake  v.  Ballon,  19  Kas.  397 ;    Daw-  Weeks  v.  White,  41  Kas.  569 ;  Clark 

son  V.  Merrille,  2  Neb.  119;  Oaks  v.  v.  Bailey,   5  Or.   343;  St.    Peter  Co. 

Heaton,  44  la.  116;  Aldrich  V.  Ander-  v.  Bunker,    5   Minn.  153;  Warren  v. 

son,  2  Land  Dec.  71 ;  Nichols  v.  Coun-  Van  Brunt,  19  Wall.  646. 

oil,  51  Ark.  26;  Sherman  v.Eakin,  47  ^Thrirt   v.    Delaney.  69   Cal.    188: 

Ark.  351 ;  Marshall  v.  Cowles,  48  Ark.  Shinu  v.  Young,  57  Cal.  525. 

362;  Red  River,  etc,  R.  Co.  v.  Sture.  ■»  Lindsey  v.  Veasy,  62  Ala.  421. 
32  Minn.  95. 


048  FEDERAL    HOMESTEADS. 

title  by  pre-emption  can  bo  acquired,  the  purchase-money 
must  be  paid,  and  the  required  proof  must  be  made.' 

But  it  has  been  lield  that  when  he  has  become  entitled  to 
enter  and  purchase,  he  may  sell  his  right ;  that  if  the  pur- 
chaser knows  that  there  is  another  claimant  who  may  contest 
the  title,  and  buys  with  his  knowledge,  he  is  liable  for  the 
price  though  the  title  fail;  that,  under  such  circumstances,  he 
acts  on  his  own  judgment  and  takes  the  risk  oi  the  title  as 
to  its  relation  to  the  other  claimant's  pretension.^  His  posi- 
tion seems  to  be  like  that  of  one  who  takes  a  quitclaim  deed ; 
he  cannot  recover  the  price  when  the  title  fails.'  He,  buying 
the  pre-emptor's  right  to  enter  and  purchase,  buys  no  land 
and  gets  no  warranty  of  title  to  land.  But  if  he  should  buy 
the  pre-emptor's  interest  when  the  right  to  purchase  is  sup- 
posed to  exist,  yet  the  seller  had  no  right  and  took  the  money 
for  nothmg,  cannot  that  money  be  recovered?  Assuredly  — 
or  there  would  be  no  such  thing  as  justice.  If  the  purchaser 
should  buy  without  notice  of  a  contesting  claim,  he  certainly 
could  recover  the  price  for  which  he  would  have  no  equiva- 
lent. And  it  does  not  appear  that,  even  with  notice,  he  ought 
to  lose  his  money  paid  to  a  seller  who  gave  nothing. 

The  non-alienation  provision  of  the  pre-emption  law  of 
congress  has  been  construed  as  follows :  "  That  clause  of  the 
pre-emption  laws  of  the  United  States  Mvhich  declares  'all 
assignments  and  transfers  of  the  rights  hereby  secured  prior 
to  the  issuing  of  the  patent  shall  be  null  and  void,'  does  not 
make  void  a  contract  for  the  sale  and  transfer  of  the  rights 
which  a  settler  expected  thereafter  to  acquire,  but  refers  only 
to  a  sale  and  transfer  of  the  rights  already  secured."  ^ 

The  reason  why  the  homestead  entererer  cannot  alienate 
until  he  is  fully  entitled  to  the  land  is  his  inability  to  com- 
plete the  acquisition  by  making  the  required  oath  if  he  has 
sold  before  or  contracted  to  sell,  as  pointed  out  by  the  su- 
preme court  in  the  extract  above  given.    If  his  purpose  in  set- 

1  Frisby  v.  Whitney,  9  Wall  195 ;  Governeur  v.  Elmendorf,  5  John.  Ch. 
Low  V.  Hutchings,  41  Cal.  634 ;  Hut-     79. 

ton  V.  Frisbie,  37  Cal.  475.  3  Earle  v.   De  Witt,   6   Allen,  520; 

2  Beeinis  v,   Bridgman,   42    Minn.     Earle  v.  Bickf ord,  6  Allen,  549. 
496 ;  Bedford  v.  Small,  31   Minn.  1 ;         *  r.  s.,  §  2263. 

Perkins  v.    Trinka,   30    Minn.   241 ;        » Taylor  v.  Baker,  1  Fla.  245. 


ALIENATION    INUIBITED.  949 

tling  was  mere  speculation,  he  cannot  avail  himself  of  the  be- 
neficent homestead  provision  made  by  congress.' 

Sale,  in  the  absence  of  inJiibition,  allowed:  In  the  absence 
of  any  statutory  inhibition,  express  or  implied,  when  no  affi- 
davit inconsistent  with  prior  alienation  is  required,  there  is  no 
reason  why  the  owner  of  an  incomplete  title  may  not  sell  and 
convey  whatever  right  he  has.  The  sale  of  a  title  infuturo  was 
drawn  in  question  before  the  supreme  court,  rendering  it  nec- 
essary to  pass  upon  the  effect  of  a  proviso,^  which  forbade 
future  sale,  upon  a  sale  made  before  the  passage  of  the  act. 
Justice  Miller,  the  organ  of  the  court,  expressed  its  opinion 
that  contracts  made  by  actual  settlers  on  the  public  lands  con- 
cerning their  future  title  to  be  acquired  of  the  government 
and  their  present  possessory  right,  are  valid  when  not  forbid- 
den by  positive  law.  This  was  held  true,  though  there  was  no 
statute  of  congress  authorizing  the  acquisition  of  title  when 
the  contracts  were  made.  The  property  involved  was  part  of 
the  city  of  Portland.  After  the  contracts  by  which  the  pos- 
sessors agreed  to  sell  their  yet  unacquired  titles,  the  act  above 
cited  was  passed,  with  the  j^rovMo  inhibitmg  sale  as  aforesaid. 
The  court  found  in  this  an  argument  in  favor  of  the  validity 
of  the  contracts  and  said  that,  so  far  from  invalidating  them, 
the  inhibition  of  the  future  sale  of  the  settlers'  interests  before 
the  issue  of  a  patent  created  a  strong  implication  in  support 
of  the  sales.  To  quote :  "  The  right  of  the  United  States  to 
dispose  of  her  own  property  is  undisputed,  and  the  right  to 
make  rules  by  which  the  lands  of  the  government  may  be  sold 
or  given  away  is  acknowledged;  but,  subject  to  these  well 
known  principles,  parties  in  possession  of  the  soil  might  make 
valid  contracts,  even  concerning  the  title,  predicated  upon  the 
hypothesis  that  they  might  thereafter  legally  acquire  the  title, 
except  in  cases  where  congress  has  imposed  restrictions  on 
such  contracts."  ^ 

1  Grower  v.  Fletcher,  116  U.  S.  380 ;        2  Oregon  Donation  Act  1850. 
Quinby   v.    Conlan,    104  U.   S.   420;        3  Lamb  v.  Davenport,  18  Wall.  307 : 

Worth  V.  Branson,  98  U.  S.  118;  Has-  Myers  v.  Croft,  13  Wall.  291 ;   Spar- 

mer  v.  Wallace,  97  U.  S.  575 ;  Ather-  row  v.  Strong,  3  Wall.  97 ;  Thredgill 

ton  V.   Fowler,  96   U.  S.   513;W^hit-  v.  Pintard,  12  How.  24 ;   Southerlaud 

taker  v.  Pendola  (Cal.),  20   P.  680;  v.  Whittington,  46  Ark.  285;  Gaine.s 

Union  Pac.  R  Co.  v.  Kennedy  (CoL),  v.  Molen,  41  Ark.  232. 
20  P.  696. 


95  i)  FEDERAL    HOMESTEADS. 

In  the  absence  of  any  inhibition,  the  pre-emptor  may  sell  his 
title  in  futuro} 

An  executor}'^  agreement  to  sell  in  future,  upon  completion 
of  the  title,  has  been  held  to  be  strictly  an  alienation.^ 

§  10.  Incumbrances. 

Inhibition  of  lien  before  comjplelion  of  title:  No  lien  can  be 
created  on  government  land  while  the  title  remains  in  the 
United  States.^  The  patent  is  the  settler's  title  deed ;  but  as 
he  may  have  acquired  the  equitable  title  by  compliance  with 
all  requisites,  including  the  required  oath,  so  as  to  have  an  in- 
disputable right  to  such  deed,  it  is  held  that  the  actual  issue 
of  the  patent  to  him  is  not  essential  to  his  right  to  mortgage 
the  land.* 

Statute  construed:  The  statute :  "  No  lands  acquired  under 
the  provisions  "  of  the  act  ^  "  shall,  in  any  event,  become  liable 
to  the  satisfaction  of  any  debt  contracted  prior  to  the  issuing 
of  the  patent  therefor,"  has  been  construed  to  be  "  manifestly 
intended  for  the  protection  of  the  entryman,  to  prevent  the 
appropriation  of  the  land  in  invitwm  to  the  satisfaction  of 
debts  incurred  anterior  to  the  issuance  of  the  patent ; "  and 
the  inference  is  drawn  that  "a  mortgage  given  upon  a  gov- 
ernment homestead  after  a  final  certificate  has  been  issued, 
but  before  the  reception  of  the  patent,  is  efficacious."  ^  After 
performing  conditions,  one  who  has  entered  government  land 
under  the  homestead  laws,  which  exempt  it  from  debts  con- 
tracted prior  to  the  issue  of  the  patent,  may  yet  render  it  lia- 
ble by  voluntarily  putting  a  mortgage  upon  it.^  This  would 
be  in  the  face  of  the  settled  doctrine  of  the  supreme  court  of 

I  Ih.;  Camp  v.  Smith,  2  Minn.  131 ;  <  Webster  v.  Bowman,  25  Fed.  889; 

Olson  V.  Orton,  28  Minn.  36 ;  Robbins  Axtell     v.    Warden,     7     Neb.     182; 

V.    Bunn,    54    111.   48;    Hay  ward   v.  Cheney  v.  White,  5  Neb.  261;    Bel- 

Ormsbee,  11  Wis.  3;    Dillingham  v.  linger  v.  White,  5  Neb.  401. 

Fisher,  5  Wis.  475.  5  u.  S.  Eev.  Stat.,  §  2296. 

-Kingsley  v.  Gilman,  15  Minn.  59;  «  Lewis  v.  Wetherell,  36  Minn.  386; 

Boydv.  Cudderback,  31  111.  113;  Con-  Lang  v.    Morey,  40  Minn.  396.     See 

over  V.   Mut.   Ins.   Co.,   1    N.  Y.  290 ;  Orr  v.  Stewart.  67  Cal.  275 ;  Spiess  v. 

Masters  v.  Madison  Ins.  Co.,  11  Barb.  Neuberg,  71  Wis.  279. 

624 ;  Lane  v.  Maine  Ins.  Co.,  12  Me,  •  Lang  v.    Morey,  40    Minn.    396 ; 

44 ;  Burbank  V.  Rockingham  Ins.  Co.,  Nycum    v.   McAllister,    33    la.   374; 

24  N.  H.  550.  Jones  v.  Yoakam,  5  Neb.  265 ;  Cheney 

3  Shoreman  v.   Eakin,  47  Ark.  351.  v.  White,  5  Neb.  261. 


INCUMBRANCES.  951 

the  United  States,  if  the  mortgage  be  given  before  the  taking 
of  the  required  oath  to  get  tlie  certificate;  for  as,  in  such  case, 
the  oath  could  not  be  truthfully  taken,  the  rigiit  to  the  land 
could  not  be  completed,  and  the  mortgage  must  fall  to  the 
ground.  The  retroaction  of  the  patent  to  the  date  of  entry 
would  not  legalize  mortgages  put  upon  government  land  by  a 
settler  when  he  did  not  own  it.  The  land  is  not  liable  for 
any  debt  of  the  owner  contracted  before  the  issue  of  the  pat- 
ent;^ or,  rather,  his  right  to  have  it  issued  to  him.  It  has 
been  held  to  be  within  the  spirit  of  the  legislation  of  congress, 
however,  to  allow  an  enterer  to  take  in  a  partner  and  give 
him  an  interest  for  advances,  after  entry  and  before  patent- 
ing;^ and  there  can  be  no  doubt  of  this,  if  the  interest  be 
given  after  the  reception  of  the  final  certificate;  but  how  can 
the  settler  swear  that  no  part  of>  his  land  has  been  alienated,' 
if  previously  he  has  given  an  interest  in  the  land  to  a  partner? 
If  the  advances  received  in  consideration  were  for  the  making 
of  improvements,  and  only  interest  in  them  was  conveyed, 
there  would  seem  to  be  no  objection.  The  transaction  was 
for  the  good  of  the  settler,  it  may  be  said,  and  therefore  within 
the  spirit  of  the  statute;  but  the  oath  is  in  the  letter,  and  the 
requirement  is  not  ambiguous. 

Policy  cmd  law:  If  no  public  policy  were  concerned,  justice 
between  mortgagor  and  mortgagee  would  seem  to  require  the 
performance  of  contracts  made  between  them  before  the  ma- 
turity of  the  former's  title.  It  would  not  lie  in  his  mouth  to 
deny  the  validity  of  a  contract  on  which  he  had  received  in 
money  the  equivalent  of  what  he  had  promised  to  give  in 
land.  Could  his  grantee,  holding  a  quitclaim  title  from  the 
mortgagor  bearing  date  later  than  that  of  the  patent,  question 
the  legality  of  a  mortgage  bearing  a  prior  date?*  But,  under 
the  statute,  as  shown  in  a  case  above  cited,^  the  settler  cannot 
sell  before  making  final  proof  and  affidavit ;  and  he  is  not  the 
only  person  at  fault  when  an  attempt  is  made  to  sell  in  con- 
travention of  law.     The  vendee  knows  the  statute,  winks  at 

>  Sorrels  v.  Self,  43  Ark.  451 ;  Cox  ••  See  Forgy  v.  Merryinan,  14  Nebt 

V.  Donnellj',  34  Ark.  762.  513;  Blanchard  v.  Jamison,  14  Neb. 

2  Hot  Springs  R  Co.  v.  Tyler,  30  244;  Skinner  v.  Reynick,  10  Neb.  333; 
Ark.  205.  Jones  v.  Yoakum,  5  Neb.  265. 

3  U.  S.  Rev.  Stat.,  §  2291.  *  Anderson  v.  Carkins,  supra. 


952  FEDERAL    HOMESTEADS. 

the  violation  of  it  by  his  vendor,  and  becomes  particeps  crim- 
inis.     The  same  is  true  as  to  a  mortgagor  and  a  mortgagee. 

Whatever  burden  may  be  put  upon  a  federal  homestead, 
rightfully  or  wrongfully,  the  land  cannot  be  subjected  to 
forced  sale  for  ordinary  debt  contracted  before  the  issuance 
of  the  patent  ^  or  the  acquisition  of  title. 

A  mortgage,  made  by  the  occupant  of  land  subsequently 
taken  up  under  the  town-site  laws,  was  held  to  be  not  void."^ 
But  an  occupant  of  land  subject  to  pre-emption  sold  his  im- 
provements, after  having  mortgaged  the  property,  to  a  pur- 
chaser who  afterwards  acquired  the  land  from  the  government, 
and  it  was  held  that  the  mortgage  could  not  be  enforced  against 
the  land,  for  the  mortgagor  did  not  own  it;  and  the  purchaser 
derived  his  title  from  the  United  States  —  not  from  him.'  If 
a  purchaser  assumes  a  mortg'age  debt  on  the  land  purchased, 
he  is  estopped  from  denying  the  validity  of  the  mortgage 
under  the  exemption  laws.* 

Improvements  made  by  the  settler  become  a  part  of  the  real 
estate,  so  that  a  mechanic's  lien  for  work  and  material  does 
not  create  a  lien  upon  the  property  or  the  building;  for  the 
settler  has  yet  no  title,  and  the  government  does  not  become 
the  debtor  of  the  mechanic.^  But  courts  recognize  "  improve- 
ments upon  public  lands  as  property ;  and  they  uphold  con- 
tracts between  owners  of  them,  when  fair  and  reasonable, 
not  only  with  regard  to  the  improvements  but  also  executory 
contracts  with  regard  to  the  title  of  the  lands  themselves,  to 
be  afterwards  acquired,  so  far  as  may  be  necessary  to  secure 
the  enjoyment  of  improvements  crossing  lines."  ^ 

§  11.  Title. 

The  certificate  of  entry  gives  possessory  right  to  the  settler, 
so  that  he  may  eject  an  intruder  (as  already  said),^  and  may 
maintain  possession  even  against  the  government  itself,^  as 

'Smith  V.  Steele,  13  Neb.  1,  'Ante,  p.  933;  Brunimett  v.  Pearle, 

^Reasoner  v.  Markley,  25  Kas.  635.  36  Ark.  471 ;  Broussard  v.  Broussard. 

3  Bull  V.  Shaw,  48  Cal.  455.  43  La.  Ann.  921. 

*  Green  v.  Houston,  22  Kas.  35.  «  Myers  v.   Croft,    13    Wall.    291 ; 

*  Kansas  Lumber  Co.  v.  Jones,  32  Close  v.  Stuyvesant,  132  111.607;  Rob- 
Kas.  195.  bins  v.  Bunn,  54  111.  48 ;  Coleman  v. 

«Mantooth  v.  Burke.  35  Ark.  540,     Allen,  75  Mo.  332. 
544;  Hamilton  v.  Fowlkes,  16  Ark. 

84a 


TITLE.  953 

generally  held  with  some  exception;^  for  the  United  States 
must  keep  faith  with  him  while  he  is  performing  the  condi- 
tions of  the  donation.  Under  this  certificate  he  may  even 
devise  his  inchoate  title  so  as  to  enable  the  devisee  to  coin- 
j)lete  the  performance  of  the  conditions.' 

The  final  certificate,  showing  that  all  the  conditions  have 
been  performed,  is  evidence  of  equitable  title  to  the  homestead. 
The  government  still  hohls  the  legal  title,  but  only  as  trustee 
for  the  real  proprietor.' 

He  is  entitled  to  a  patent,  and  therefore  he  may  contract 
with  reference  to  the  land  before  it  has  been  issued  to  him.'* 
If  he  then  convey  it  by  warranty  deed,  the  grantee's  title  will 
become  a  complete  legal  one  upon  the  issuance  of  the  patent.^ 
If  he  agree  to  convey  upon  reception  of  the  patent,  it  is  held 
that  the  ag-reement  will  be  binding  when  he  receives  it."  The 
patent  is  the  title  deed,  given  by  the  United  States  to  the  citi- 
zen who  has  performed  all  the  conditions  upon  which  the  gov- 
ernmental donation  of  homestead  land  is  bestowed.  It  relates 
back  to  the  date  of  entry,^  but  not  so  as  to  validate  an  incum- 
brance or  conveyance  prior  to  the  final  certificate.  It  is  his 
evidence  of  title,  conclusive  in  all  courts. 

1  Mantooth  v.  Burke,  35  Ark.  540,  3  McLean,  107;  Pac.  Min.  Co.  v. 
544;  Earle  v.  Hale,  31  Ark.  470;  Spargo.  16  Fed.  348;  Union  M.  Co. 
Hamilton  v.  Fonlkes,  16  Ark.  340 ;  v.  Danberg,  2  Saw.  454 ;  Gwynne  v. 
Cain  V.  Leslie,  15  Ark.  312;  Pelham  Niswanger,  15  Ohio,  367:  Smitli  v. 
V.  Wilson,  4  Ark.  289.  A  patent  on  a  Hollis,  46  Ark.  23 ;  Coleman  v.  Hill, 
town  lot  is  void.  Burfenning  v.  Chi-  44  Ark.  452;  Bi'own  v.  Warren,  16 
cago,  St.  Paul,  etc.  R.  Co.,  46  Minn.  20.  Nev.   228;   Treadway  v.   Wilder,  12 

2  Coleman  v.  McCormick,  37  Minn.  Nev.  114;  Axtell  v.  Warden,  7  Neb. 
179.  182;  Stewart  v.  Sutherland  (Cal.),  28 

3  Wis.  Central  R.  Co.  v.  Price,  P.  947 ;  Rose  v.  Lumber  Co.,  73  Cal. 
133U.  S.  496:  Defferback  v.  Hawke,  385;  Grant  v.  Oliver,  91  Cal.  158; 
115  U.  S.  392?  Simmons  v.  Ogle,  105  People  v.  Shearer,  30  Cal.  648. 

U.  S.  271 ;  Simmons  v.  Wagner,  101  *  Newkirk  v.  Marshall,  35  Kaa  77 
U.  S.  260 ;  Railway  Co.  v.  McShane,        ^  Knight  v.    Leary,    54    Wis.   459, 

23  Wall.  444,  461;  Railway  Co.  v.  See  Week  v.  Bosworth,  61  Wis.  78. 85, 
Prescott,    16    Wall.    603 ;     Stark    v.        «>  Lewis  v.  Wetherell,  36  Minn.  386 

Starrs,  6  Wall.  402;  Hughes  v.  United  Townsend  v.  Fenton,  30  Minn.  528; 

States,  4  Wall.  232 ;  Carroll  v.  Saf-  Moore  v.  Mcintosh,  6  Kas.  39. 
ford,  3  How.  441 ;  Carroll   v.  Perry,        ''  Union   Mill   Co.   v.    Dangberg,   3 

4  McLean,  25 ;  Astrom  v.  Hammond,  Saw.  450. 


APPENDIX. 


NOTES  FEOM  THE  HOMESTEAD  LAWS  OUTLINING  THE  PRINCI- 
PAL PROVISIONS. 


Alabama.  Every  homestead  not  exceeding  eighty  acres,  with  improve- 
ments thereon,  to  be  selected  by  the  owner,  or  any  lot  with  improvements 
in  a  town,  not  exceeding  $2,000  in  value,  owned  and  occupied  by  a  resident, 
shall  be  exempt,  except  against  any  mortgage  or  pledge  thereon,  or  labor- 
ers' or  mechanics'  liens.  It  cannot  be  mortgaged  or  alienated  without  the 
joint  consent  of  the  husband  and  wife;  and  all  instruments  waiving  tiie 
right  of  houiestead  must  be  attested  by  a  witness.  The  homestead  remains 
exempt  from  liability  for  the  owner's  debts,  after  his  death,  while  any  of  his 
childi'en  is  a  minor ;  and  it  also  inures  to  the  benefit  of  the  widow.  Const, 
art.  X,  §  2.  The  Code  carries  out  these  mandates,  and  it  is  sufficiently 
cited  in  this  treatise  under  different  topics. 
Arizona.  Rev.  Stat.  1887,  §  2071 :  Every  person  who  is  the  head  of  a  fam- 
iij'  may  hold  as  a  homestead,  exempt  from  execution  and  forced  sale,  real 
property  selected  by  him  or  her  not  exceeding  $4,000  in  value. 

g  2073  :  Any  person,  wishing  to  avail  himself  or  herself  of  the  provisions 
of  the  foregoing  section,  shall  make  out,  under  oath,  a  claim  in  writing, 
showing  that  he  or  she  is  the  head  of  a  family,  describing  the  land,  stating 
the  value,  and  filing  it  with  the  county  recorder. 

§  2073 :  The  claim  may  be  by  the  husband  or  wife  or  by  an  unmarried 
person  who  is  the  head  of  a  family,  or  by  one  having  charge  of  the  prem- 
ises in  behalf  of  the  owner  who  is  entitled  to  claim. 

§  2074 :  If  married,  the  homestead  may  be  selected  from  community 
property,  or  from  the  separate  property  of  the  husband ;  or,  if  the  wife 
join  in  claiming,  it  may  be  from  her  separate  property. 

§  2075 :  Abandonment  is  effected  by  declaration  of  abandonment,  or  by 
a  grant  of  the  property.  It  must  be  by  both  husband  and  wife,  if  the 
owner  is  married ;  and  it  holds  good  only  when  filed  in  the  county  office. 

§  2076 :  A  married  man  cannot  sell,  lease  or  incumber  his  homestead 
without  joinder  by  his  wife. 

§  2077 :  When  homestead  is  taken  by  married  persons,  Imsband  and 
wife  shall  hold  as  joint  tenants,  and  on  the  death  of  one  it  vests  in  the 
survivor :  and  on  the  death  of  the  survivor,  "  the  minor  child  or  children, 
if  any,  shall  receive  the  benefit  of  this  act" 

§  2078:  "If  the  plaintiff  in  execution  be  dissatisfied  with  the  valuation 
of  the  land  claimed  by  the  defendant  as  liomestead,  he  may  serve  upon 


956  APPENDIX. 

Arizona  —  continued. 

him,  liis  agent  or  attorney,  and  upon  the  officer  holding  the  execution,  a 
notice  thereof  in  writing,  and  the  appointment  of  an  appraiser."  Within 
three  days  thereafter,  the  defendant  shall  appoint  an  appraiser,  and  the  ap- 
pointees shall  appraise  witliin  three  daj's  thereafter.  If  the  homestead  be 
found  not  worth  over  $4,000,  the  plaintiff  shall  pay  the  costs.  If  found 
worth  more,  the  property  shall  be  divided  and  the  excess  sold.  If  indivis- 
ible, all  shall  be  sold,  and  $4,000  reserved  to  the  debtor  from  the  proceeds. 
No  bid  for  the  whole,  under  $4,000,  shall  be  received. 

§  2079 :  The  decision  of  the  appraisers  is  final,  if  not  impeached  for 
fraud. 

§  2080 :  If  they  cannot  agree,  they  must  select  a  third  appraiser. 
Arkansas.  The  homestead  of  a  resident,  married  or  the  head  of  a  family, 
shall  not  be  subject  to  the  lien  of  any  judgment,  decree  of  court,  sale  un- 
der execution,  or  any  process  except  for  purchase-money,  specific  laborers' 
or  mechanics'  liens  for  improvements  on  it,  taxes,  or  judgments  rendered 
against  persons  in  fiduciary  capacity  for  money  thus  collected  by  them. 
It  may  consist  of  one  hundred  and  sixty  acres  outside  of  any  city,  town 
or  village,  with  improvements  thereon,  worth  not  more  than  $2,500,  not 
reducible  to  less  than  eighty  acres  I'egardless  of  value ;  or  one  acre  with 
its  improvements  within  any  city,  town  or  village,  worth  not  more  than 
$2,500,  not  reducible  to  less  than  one-quarter  of  an  acre  regardless  of 
value. 

If  the  owner  die  leaving  a  widow  but  no  children,  she  shall  have  the 
rents  and  profits  of  the  homestead  for  life,  if  she  has  none  of  her  own, 
and  it  shall  be  exempt  as  before ;  but  if  the  owner  left  children  (one  or 
more),  they  shall  be  entitled  to  have  the  rents  and  profits  till  of  age  (the 
right  of  each  to  expire  then,  respectively,  and  go  to  tliose  not  of  age  till 
all  have  reached  majority),  and  when  all  are  of  age,  the  whole  to  go  to 
the  widow.  Residence  of  the  widow  and  children  on  the  homestead  is 
not  required.  On  the  death  of  the  widow  all  of  the  homestead  shall  be 
vested  in  the  minor  children. 

Const  Ark.,  art.  IX,  §§  3-6. 

The  statute  repeats  the  constitutional  provision  relative  to  widows  and 
minoi"s,  and  adds  that,  to  avail  themselves  of  it,  "she  or  they  shall  file 
with  the  clerk  of  the  probate  court  of  the  county  in  which  the  homestead 
is  situated,  an  accurate  description  "  of  the  homestead  claimed,  and  apply 
to  have  it  reserved  from  sale.  The  clerk  shall  record  that  it  has  been  so 
reserved,  upon  the  filing  of  the  description  and  application. 

Dig.  of  Stat,  of  Ark.,  §§  3590-3. 
California.  There  shall  be  a  homestead  exempt  as  provided  by  law.    Const 
of  Cal.,  art  XVII,  §  1. 

The  house  and  land,  constituting  the  residence  of  the  claimant,  may  be 
selected  as  the  homestead.  It  may  consist  of  tlie  husband's  separate  prop- 
erty, the  wife's  separate  property  if  she  consent  or  community  property. 
It  may  be  selected  from  any  real  property  occupied  and  owned  by  an  un- 
married head  of  a  family  which  includes  a  minor  child  of  his  or  her  de- 
ceased wife  or  husband.  And  it  may  be  selected  from  such  property  of 
any  person  who  has  living  with  him  or  her  as  a  member  of  the  family,  a 
minor  brother,  sister,  nephew  or  niece ;  a  parent  or  grandparent ;  a  de- 


APPENDIX. 


957 


California —  continued. 
ceased  wife's  or  liusband's  parent  or  grandparent;  or  an  unmarried  sister 
or  any  relative  above  named  w}io  is  incapable  of  self-HUi»port,  wlietlier 
above  or  below  the  age  of  majority.  The  wife's  consent  to  have  the 
homestead  selected  from  lier  separate  property  must  ai)pear  from  her 
own  declaration  of  homestead  or  her  joining  iu  the  declaration  by  the 
husband. 

The  homestead  is  exempt  from  execution,  except  on  judgm-nt  ob- 
tained before  the  filing  of  the  declaration  so  that  it  created  a  lien  on  the 
property  ;  or  judgment  to  enforce  mechanics',  laborers'  or  vendors'  liens 
on  the  property ;  or  mortgages  created  by  the  husband  and  wife  or  an 
unmarried  claimant,  or  any  mortgage  anterior  to  the  filing  of  the  home- 
stead declaration. 

Husband  and  wife  must  join  in  an  act  incumbering  the  homestead,  or 
in  any  declaration  of  abandonment  or  conveyance  of  it,  which  must  be 
duly  recorded  to  give  it  effect. 

When  the  homestead  is  liable  to  execution,  in  part,  the  judgment  cred- 
itor may  apply  for  the  appointment  of  appraisers  by  the  superior  court 
of  the  county  showing  that  execution  has  been  levied  upon  it,  and  that 
its  value  exceeds  the  sum  legally  exempted,  and  he  must  aver  the  name 
of  the  claimant. 

If,  by  the  report  of  the  appraisers,  it  appear  that  the  land  is  susceptible 
of  division,  the  court  may  order  the  residence  reserved  as  the  homestead 
with  as  much  land  as  the  exempt  limit  Avill  allow,  and  have  the  execu- 
tion restricted  to  the  residence.  If  reported  indivisible  yet  excessive  of 
the  exemption  limit  in  value,  all  must  be  sold,  and  the  claimant's  interest 
must  be  paid  to  him  from  the  proceeds —  and  the  sura  paid  remains  in- 
violable by  execution  for  six  months. 

The  limit  is  $5,000  to  the  head  of  a  family ;  $1,000  to  any  other  person. 
A  declarant  for  the  $1,000  exemption  must  observe  the  same  require- 
ments as  in  case  of  making  a  conveyance  of  real  estate,  so  far  as  con- 
cerns description,  recordation,  etc.  And  he  must  state  its  cash  value  and 
that  he  resides  on  the  premises,  though  he  does  not  state  that  he  is  the 
head  of  a  family. 

The  declaration  of  homestead  must  be  executed  and  acknowledged  and 
recorded  like  the  grant  of  real  property.  It  must  show  that  the  declarant 
is  the  head  of  a  family,  or  the  wife  of  such  who  makes  the  declaration 
for  the  joint  benefit  of  herself  and  her  husband  —  and  that  the  latter  has 
not  made  a  declaration;  that  the  declarant  resides  on  the  premises 
claimed  as  a  homestead ;  and  there  must  be  a  description  of  the  property 
claimed  and  a  statement  of  its  value  in  cash. 

A  homestead  carved  from  community  property  vests  in  the  survivor  of 
the  partners  in  community  on  the  death  of  the  other  spouse,  still  free 
from  any  liability  that  did  not  exist  before  the  death.  When  carved 
from  separate  property,  the  heirs  or  devisees  of  the  former  owner  take 
subject  to  power  of  the  coui't  to  assign  the  use  of  the  property  to  the  fam- 
ily of  the  deceased  for  a  limited  period.  It  does  not  become  liable  to  exe- 
cution for  the  debts  of  the  homestead  beneficiary  except  for  liens,  etc., 
above  mentioned. 

Deering's  Annotated  Code  and  Statutes  of  California,  §§  1337-1263. 


958  APPENDIX. 

Colorado.     The  legislature  shall   pass  a  liberal  homestead  law.     Const., 
art  XVIII.  §  1. 

Gen.  Stat.  1883,  §  1631 :  Every  householder  who  is  the  head  of  a 
family  may  have  two  thousand  dollars'  worth  of  homestead  property 
exempt  from  debt  incurred  after  February  1,  18G8. 

§  1633 :  The  word  homestead  must  be  inscribed  in  the  margin  of  the 
recorded  title. 

§  1633  requires  family  occupancy. 

§1634:  The  survivor  of  married  beneficiaries  and  his  or  her  minor 
children  "shall  be  entitled  to  the  homestead  ;"  but  if  there  is  no  widow  or 
widower  or  minor  the  property  is  liable  for  the  debts  of  the  deceased 
owner. 

§  1635 :  There  is  no  quantitative  limit. 

§  1636 :  The  wife  must  join  in  a  mortgage  of  the  homestead  to  render 
it  effectual. 

§  1637 :  Any  excess  of  value,  beyond  the  limit,  may  be  subjected  to 
execution.  See  Mills'  Anno.  Stat.,  §  2133  et  seq. 
riorida.  A  homestead  to  the  extent  of  one  hundred  and  sixty  acres  in  the 
country  or  half  an  acre  in  a  town  or  city,  and  improvements  thereon, 
owned  by  the  head  of  a  fanjily  residing  in  the  state,  is  exempt.  Const,  of 
Fla.,  art  IX,  sec.  1. 

Stat,  §  1.  One  hundred  and  sixty  acres  in  the  country,  or  half  an  acre 
in  town,  with  improvements,  and  one  thousand  dollars'  worth  of  per- 
sonal property,  owned  by  a  head  of  a  family  resident  in  the  state,  are  ex- 
empt from  execution,  except  for  taxes,  purchase-money,  or  labor  per- 
formed on  the  homestead. 

§  3.  In  addition  to  the  exemption  in  the  first  section,  such  property  as 
the  head  of  the  family  may  select  to  the  amount  of  $1,000.  The  exemp- 
tion in  this  section  shall  prevent  only  the  sale  of  property  when  the 
debt  was  contracted,  liability  incurred  or  judgment  obtamed  before  May 
10,  1865.  except  for  taxes,  purchase-money  and  labor. 

§  3.  The  exemptions  of  sections  1  and  2  shall  accrue  to  the  heirs  of  the 
party  having  taken  the  benefit  of  such  exemption.  The  exemption  of 
section  1  shall  "  apply  to  all  debts  except  as  specified  in  said  section,  no 
matter  when  or  where  the  debt  was  contracted  or  liability  incurred." 

McClellan's  Dig.  of  Laws  of  Fla.,  pp.  528-9. 
Georgia.  The  head  of  a  family,  or  the  guardian  of  minor  children  or  aged 
and  infirm  persons,  or  any  one  having  the  care  of  a  dependent  female  of 
any  age,  is  entitled  to  exemption  of  realty  and  personalty.  No  court 
shall  have  jurisdiction  to  enforce  any  judgment  or  execution  against  such 
exempt  property,  except  for  taxes,  purchase-money,  labor  done  on  it, 
material  furnished  for  it,  or  incumbrances  removed  from  it  The  debtor 
may  waive  exemption,  in  writing,  as  to  the  realty.  In  case  of  the  sale  of 
the  liomestead  under  order  of  court,  the  proceeds  to  the  amount  of  ex- 
emption ($1,000)  must  be  invested  in  a  new  homestead.  Besides  this  sura, 
there  is  peisonal  exemption.  Const,  art  9,  ig  1-5,  9.  The  courts  recog- 
nize both  a  constitutional  and  a  statutory  homestead,  though  no  person 
can  avail  himself  of  both.  The  legislation  is  extensive,  and  is  sufficiently 
copied  and  cited  in  this  treatise. 


APPENDIX.  959 

Idaho.     Rev.  Stat.  1887,  i?  .'50^0:  Homestead  may  be  carved  from  commu- 
nity property  or  from  the  wife's  separate  property  witli  lier  consent 

§  3037 :  If  it  is  from  her  separate  i^roperty,  she  must  make  the  home- 
stead declaration. 

§  3039 :  Tlie  homestead  is  Hable  on  a  judgment  prior  to  the  declaration, 
or  an  attachment  laid  before;  and  for  labonrs',  jnechanics'  or  vendors' 
liens,  and  for  mortL'ages  given  by  both  husband  and  wife. 

§  3041 :  Abandonment  is  by  declaration  or  grant  made  by  both  husband 
and  wife. 

^  30f)8:  The  monetary  limit  is  $5,000  to  the  head  of  a  family,  $1,000  to 
'•  any  other  person." 

The  provisions  of  the  statute  are  much  the  same  as  in  California. 
Illinois.     The  legislature  shall  pass  a  liberal  homestead  law.     Const.,  art 
IV,  §  32. 

Every  householder  having  a  family  is  entitled  to  homestead  exemption 
to  the  amount  of  $1,000  in  the  house  and  land  occujjied  by  him  as  a  res- 
idence and  owned  or  leased.  Such  homestead,  or  right  and  estate 
therein,  shall  be  exempt  from  attachment,  judgment  levy  or  execution 
sale  for  the  payment  of  his  debts,  or  other  purposes;  and  from  the  laws 
of  convej-ance,  descent  and  devise,  except  liability  for  taxes  and  pur- 
chase-money, and  for  improvements. 

The  exemption  shall  continue  to  the  survivor,  and  tiie  death  of  husband  or 
wife,  continuing  to  occupy  the  homestead,  for  the  benetitof  such  survivor 
and  the  children  till  of  age.  In  case  of  desertion  by  either  husband  or 
wife,  the  one  remaining  on  the  homestead  shall  enjoy  the  exemption.  In 
case  of  divorce  the  court  may  dispose  of  the  homestead. 

The  extinguishment  of  the  homestead  must  be  by  written  instrument 
signed  by  both  husband  and  wife,  acknowledged  as  in  conveyances  of 
real  estate  or  abandonment  thereof  or  possession  given  to  another.  If 
the  exemption  is  continued  to  a  child  or  children,  an  order  of  court  is 
requisite  to  its  release. 

Upon  sale  and  conveyance,  the  proceeds  stand  in  lieu  of  the  homestead 
to  the  amount  of  the  exemption  limit  ($1,000),  for  a  year.  The  same  ex- 
emption applies  to  money  received  on  insurance  as  applied  to  the  building 
before  being  burned.  The  land  sold  is  conveyed  free  from  all  the  liabilities 
from  which  it  was  previously  exempt 

In  enforcing  a  lien  upon  premises  which  include  the  homestead,  the 
court  maj'  have  the  portion,  entitled  to  exemption,  set  apart,  and  cause 
the  rest  to  be  sold.  If  the  premises  are  not  susceptible  of  division,  the 
whole  may  be  sold  and  the  value  of  the  exemption  right  paid  to  the  bene- 
ficiary out  of  the  proceeds.  Should  the  premises  be  exposed  for  sale, 
without  first  setting  apart  the  homestead,  they  cannot  be  adjudicated  on 
a  bid  not  exceeding  $1,000. 

Commissioners  may  be  appointed  to  estimate  the  premises,  and  the 
owner  of  the  homestead  may  pay  his  debt  less  $1,000  and  thus  prevent 
sale,  etc. 

Starr  &  Curtiss,  An.  Stat  111.,  pp.  1097-1111. 
Indiana.     No  homestead  law.     There  is  exemption  of  realty  or  personalty, 
or  both,  to  the  amount  of  $600,  when  the  demand  is  on  a  contruct     The 
debtor  selects  the  property.     What  is  sold  under  exemption  must  bring 


960  APPENDIX. 

Indiana  —  continued. 

two-tliinls  of  the  appraisement,  unless  tlu  debtor  has  waived  this  benefit 
He  cannot  contract  in  advance  to  waive  his  right  of  exemption  when  it 
shall  arise. 
The  statutes  are  freely  cited  in  the  treatise. 
Iowa.  The  homestead  of  every  family,  whether  owned  by  husband  or  wife, 
is  exempt  from  forced  judicial  sale,  in  the  absence  of  any  statutory  pro- 
vision to  the  contrary. 

The  surviving  spouse,  though  childless,  continuing  to  reside  in  the  house 
used  as  a  liomestead  prior  to  the  death  of  the  other  marital  partner,  shall 
be  deemed  the  head  of  the  family  and  entitled  to  the  exemption. 

Husband  and  wife  must  act  jointly  in  the  conveyance  of  the  homestead. 
The  homestead  is  liable  for  taxes,  and  liable  upon  mechanics'  liens  for 
work,  labor  or  material  in  the  improvement  of  the  premises,  and  for  debts 
contracted  by  the  owner  prior  to  the  purchase  when  he  has  not  effects 
sufficient  without  it  to  meet  such  obligations.  It  is  also  h'able  for  debts 
created  by  written  contract  made  by  a  competent  owner  who  stipulated 
that  it  should  be  thus  liable,  provided  he  have  not  sufficient  other  property 
pledged  for  the  payment  of  the  debt  in  the  same  written  contract. 

The  homestead  must  embrace  the  owner's  residence;  and  if  he  has 
more  than  one,  he  must  elect  between  them.  It  may  embrace  one  or 
more  lots  or  tracts  of  land,  with  improvements  and  appurtenances,  not 
exceeding  half  an  acre  within  a  town  plat  or  forty  acres  without  such 
plat  unless  the  value  be  less  than  $500.  In  such  case,  the  quantity  may 
be  enlarged  to  reach  that  value.  It  cannot  include  lots  or  tracts  which 
are  not  contiguous,  unless  they  are  habitually  used  together,  in  good  faith, 
as  one  homestead.  But  it  must  not  embrace  more  than  one  dwelling- 
house  and  its  appurtenances,  though  a  shop  or  other  building  used  by 
the  owner  of  the  homestead  in  the  prosecution  of  liis  ordinary  business, 
worth  not  more  than  $oOO,  may  be  included  as  part  of  the  exempt  home. 
The  selection  of  the  homestead  may  be  by  the  owner,  husband  or  wife, 
by  marking  the  bounds  and  giving  description  such  as  is  usual  in  instru- 
ments conveying  land,  which  description  with  the  plat  shall  be  recorded 
in  the  "  Homestead  Book."  If  the  owner,  husband  or  wife  fail  to  mark, 
plat  and  record  as  directed,  he  does  not  thus  forfeit  the  right  of  exemp- 
tion ;  but  the  officer  executing  a  writ  against  the  property  of  such  person 
as  defendant  may  cause  the  homestead  to  be  marked  off,  platted  and  re- 
corded at  the  defendant's  expense. 

The  owner  may  change  the  metes  and  bounds,  having  the  plat  and  rec- 
ord altered  to  correspond  ;  and,  with  the  assent  of  his  or  her  spouse,  may 
change  the  entire  homestead.  But  no  such  entire  change,  without  such 
assent,  shall  affect  the  rights  of  the  non-agreeing  spouse,  nor  those  of  his 
or  her  children ;  nor  can  any  change  of  the  homestead,  partial  or  total, 
affect  liens  or  conveyances  previously  made.  The  newly  selected  home- 
stead stands  in  place  of  the  old,  in  all  respects,  when  not  subject  to  any  of 
the  above-named  exceptions. 

Disputes  as  to  the  legality  of  the  establishment  of  the  homestead,  aris- 
ing between  the  claimant  and  another,  are  submitted  to  referees,  at  the 
request  of  either  party,  whose  report  is  acted  upon  by  the  court 


APPENDIX.  961 

Iowa  —  continued. 

Upon  the  death  of  husband  or  wife,  the  survivor  may  continue  to 
occupy  the  homestead  until  it  shall  be  otherwise  disposed  of  according  to 
law,  such  as  the  assignment  to  the  survivor  of  his  or  her  distributive 
share  in  the  real  estate  of  the  deceased.  The  survivor,  however,  may  elect 
to  retain  the  homestead  for  life  in  lieu  of  such  share. 

Upon  the  death  of  both  husband  and  wife  (or  of  the  owner  of  the  home- 
stead whomever),  the  property  descends  according  to  rules  of  descent,  or 
as  directed  by  will,  remaining  free  from  the  debts  of  the  decedent  parent 
or  those  of  the  heirs  inheriting  it.  But  if  there  be  no  issue,  and  no  sur- 
viving marital  partner  in  the  homestead,  it  becomes  liable  for  the  debts 
for  which  it  might  at  any  time  have  been  liable  if  never  held  as  a  home- 
stead. 

A  homestead  may  be  devised,  as  any  other  property,  subject  to  the 
rights  of  the  surviving  husband  or  wife. 

McClain's  Annotated  Code  of  Iowa,  §§  3163-3185. 
Kansas.  "  A  homestead  to  the  extent  of  one  hundred  and  sixty  acres 
of  farming  land,  or  of  one  acre  within  the  limits  of  an  incorporated  town 
or  city,  occupied  as  a  residence  by  the  family  of  the  owner,  together 
with  all  the  improvements  on  the  same,  shall  be  exempted  from  forced 
sale  under  any  process  of  law,  and  shall  not  be  alienated  without 
the  joint  consent  of  husband  and  wife,  when  that  relation  exists ;  but  no 
property  shall  be  exempt  from  sale  for  taxes  or  for  the  payment  of  obliga- 
tions contracted  for  the  purchase  of  said  premises,  or  for  the  erection  of 
improvements  thereon.  Provided,  the  provisions  of  this  section  shall  not 
apply  to  any  process  of  law  obtained  by  virtue  of  a  lien  given  by  the  con- 
sent of  both  husband  and  wife."     Const,  art  15,  sec.  9. 

The  homestead  occupied  by  the  intestate  and  his  family  till  his  death, 
and  by  his  widow  and  children  thereafter,  shall  continue  exempt  as 
before,  and  shall  be  the  absolute  pi'operty  of  the  widow  and  children  — 
subject,  however,  to  the  constitutional  exceptions. 

If  a  deceased  husband  owned  more  than  the  limit  of  land  allowed  as 
exempt  adjoining  his  residence,  his  widow  may  select  the  amount  author- 
ized by  law,  and  she  becomes  entitled  thereto,  if  there  be  no  children. 

So,  if  the  intestate  left  children,  but  no  widow,  they  become  entitled  to 
the  homestead,  as  limited  by  law. 

When  there  are  both  widow  and  children,  homestead  must  be  equally 
divided  between  her  and  them  —  half  to  her  —  upon  her  becoming  mar- 
ried or  they  all  becoming  of  age. 

The  division  may  be  by  mutual  consent,  or  the  proceeds  may  be  divided 
when  the  property  is  not  susceptible  of  division  and  a  sale  of  it  becomes 
necessary  for  the  purpose. 

Taylor's  Genl.  Stat  (1889),  §§  2593-7. 
Kentucky.  So  much  land,  including  the  dwelling-house  and  its  appur- 
tenances, owned  by  the  debtor,  as  shall  not  exceed  $1,000  in  value,  is 
exempt  from  execution,  attachment  or  judgment  of  court  (except  to  fore- 
close a  mortgage  given  by  the  owner,  or  for  purchase-money  due  on  the 
homestead),  for  all  debts  or  liabilities  incurred  after  June  1,  1866. 

Before  sale  of  the  defendant  real  estate,  appraisei-s  set  off  a  homestead 
61 


962  APPENDIX. 

Kentucky  —  continued. 

of  $1,000  value,  and  their  report  is  recorded  with  the  other  proceedings  by 
the  officer  charged  with  the  sale.  Indivisible  property  being  sold  for 
more  than  the  exemption  limit,  is  transferred  to  the  bidder,  but  the  home- 
stead beneficiary  therein  must  be  paid  $1,000  from  the  proceeds  in  lieu  of 
his  homestead. 

A  mortgage,  release  or  waiver,  to  affect  the  homestead  or  exemption 
right,  must  be  in  writing,  signed  by  both  husband  and  wife,  and  recorded 
like  a  conveyance. 

Exemption  continues  to  widow  and  children,  "but  shall  be  estimated 
in  allotting  a  dower." 

The  homestead  shall  be  for  the  use  of  the  widow  as  long  as  she  occu- 
pies it,  and  the  unmarried  infant  children  of  the  husband  shall  be  en- 
titled to  a  joint  occupancy  with  her  till  the  youngest  unmarried  child 
arrives  at  full  age.  The  termination  of  the  widow's  occupancy  shall  not 
affect  the  right  of  the  children ;  but  the  land  may  be  sold  subject  to  the 
right  of  the  widow  and  children,  if  the  sale  is  necessary  to  pay  the  debts 
of  the  husband. 

The  homestead  of  a  woman  shall,  in  like  manner,  be  for  the  use  of  her 
surviving  husband  and  the  minor  unmarried  children ;  and  when  his  and 
their  interest  ceases  it  shall  be  disposed  of  in  like  manner,  and  the  pro- 
ceeds applied  on  the  same  terms  to  her  debts ;  if  none,  divided  among  her 
children. 

The  exemption  provided  in  this  chapter  shall  apply  to  all  persons,  of 
any  race  or  color,  who  are  actual,  bona  fide  housekeepers  (with  a  family) 
of  this  commonwealth :  but  it  shall  not  apply  to  sales  under  execution, 
attachment  or  judgment  at  the  suit  of  creditors,  if  the  debt  or  liability 
existed  prior  to  the  purchase  of  the  land  or  the  erection  of  the  improve- 
ments thereon. 

Genl.  Stat.  Ky.  (1888),  pp.  574-8. 
Louisiana.  Every  head  of  a  family,  and  every  person  having  a  father  or 
mother  or  other  person  dependent  upon  him  for  supiwrt,  is  entitled  to 
have  his  homestead,  owned  and  occupied  by  him,  consisting  of  land, 
buildings  and  appurtenances,  rural  or  urban,  exempt  to  tiie  amount  of 
$2,000. 

If  the  homestead  exceed  this  limit,  and  be  sold  for  debt,  the  debt-owner 
is  entitled  to  that  amount  from  the  proceeds.  No  husband  is  entitled  to 
homestead  exemption  whose  wife  is  in  the  actual  enjoyment  of  prop- 
erty to  the  value  of  $2,000. 

TJie  exemption  does  not  hold  good  against  claims  for  the  purchase- 
money  of  the  homestead,  or  for  improvements  thereon,  or  for  services 
thereon  by  a  mechanic  or  laborer,  or  debt  incurred  by  a  public  officer, 
fiduciary  or  attorney  at  law  [in  official  capacity]. 

No  waiver  of  homestead  rights  is  valid ;  and  no  mortgage,  trust-deed, 

or  other  lien  on  the  homestead  is  valid,  except  for  its  purchape-money  or 

improvements,  whether  created  by  the  husband  alone,  or  jointly  with  his 

wife.     A[\  sales  of  the  homestead,  with  any  defeasance,  are  void. 

The  legislature  shall  require  homesteads  to  be  recorded. 

The  homestead  continues  during  the  minority  of  any  of  the  children, 


APPENDIX.  963 

Loiiisiana  —  continued 

after  the  owner's  death,  with  exemption  from  his  dehts.     It  inures  also 
to  the  benefit  of  the  widow. 

Const.  La.  219,  220.  Statutes,  cited  in  the  treatise,  are  here  omitted. 
Maine.  A  dwelhng-house,  with  the  lot  on  which  it  stands,  together  not  ex- 
ceeding $300  in  value,  is  exempt.  The  claimant  may  file  in  the  registry 
of  deeds,  in  the  county  where  the  laud  lies,  a  certificate  signed  by  him 
declaring  iiis  wish  to  have  exemption  and  describing  the  land  and  build- 
ings;  and  tile  register  shall  record  it  in  a  book  kept  for  that  purpose. 
Rev.  Stat.,  ch.  81,  §  61. 
Maryland.  No  constitutional  provision,  except  that  the  legislature  shall 
exempt  property  not  exceeding  $500  in  value.  No  homestead,  but  ex- 
emption of  realty  and  personalty,  or  either. 

One  hundred  dollars'  worth  of  property  of  any  defendant  is  exempt  in 
**  any  civil  proceeding  whatever,"  except  on  judgment  for  breach  of  prom- 
ise to  many  or  for  seduction. 

Each  defendant  may  select  property,  real  or  personal,  to  the  value  of 
flOO,  to  be  ascert  lined  by  appraisers  at  the  time  of  levy;  and  the  ap- 
praisement must  be  returned  with  the  writ. 

Indivisible  property,  real  or  personal,  must  be  sold  if  a  bid  exceed  the 
amount  exempted ;  and  that  amount  must  be  paid  to  the  defendant  out 
of  the  proceeds. 

Liens  of  vendors  for  purchase-money,  all  mortgages  and  liens  of  me- 
chanics or  others  fur  debt  contracted  in  the  erection  of  building,  and 
taxes,  excepted  from  the  effect  of  the  exeJiiption. 

Rev.  Code  of  Md.,  p.  623. 
Massachusetts.  There  is  exempted  to  the  value  of  $800,  the  lot  and  build- 
ings occupied  as  a  residence  and  owned  by  the  debtor ;  or  buildings  owned 
by  the  debtor,  and  so  occupied,  on  land  not  his  own  but  of  which  he  shall 
be  in  rightful  possession  by  lease  or  otherwise  —  he  being  a  householder 
and  having  a  family.  Declaration  and  recording  are  required.  The  ex- 
emption continues  after  the  owner's  death,  for  the  benefit  of  his  widow 
till  her  death,  and  of  the  children,  till  the  majority  of  the  youngest  child. 
The  widow's  homestead  and  dower  are  not  incompatible. 

No  conveyance  or  mortgage  of  the  homestead,  by  the  husband,  is  valid 
unless  his  wife  join  in  the  deed.  No  release  or  waiver  is  valid  unless 
by  deed  ackno\\  ledged  and  recorded  as  in  case  of  conveyance  of  real 
estate. 

The  homestead  is  liable  for  antecedent  debts,  purchase-money,  liens, 
taxes,  etc. ;  but  a  judgment  for  ordinary  debt,  contracted  after  notice  by 
recording  and  occupancy,  bears  no  lien  upon  the  property. 

Mass.  Gen.  Stats. 
Michigan.  A  homestead  owned  and  occupied  by  a  resident  of  this  state, 
not  exceeding  forty  acres,  with  improvements,  not  in  a  town  plat,  city  or 
village ;  or  a  homestead  so  owned  and  occupied,  consisting  of  a  village, 
town  or  city  lot,  or  parts  of  lots  equal  to  one,  with  improvements,  shall 
be  exempt  to  the  amount  of  $1,500,  from  forced  sale  on  execution  or  any 
final  process  from  a  court,  for  any  debt  contracted  after  the  adoption  of 
this  constitution.     It  is  not  exempt  from  the  foreclosure  of  a  mortgage. 


964  APPENDIX. 

Michigan  —  continued. 

The  wife  must  have  joined  to  render  valid  a  mortgage  or  conveyance 
given  by  a  married  man. 

Tlie  exemption  continues  during  the  minority  of  the  children  of  the  de- 
ceased owner;  also  during  the  widowhood  of  his  widow,  unless  she  own 
a  homestead  in  her  own  right 

Const,  art  XVI,  §§  1-4. 

To  the  exemption  declared  in  the  constitution,  the  statute  adds  that  the 
homestead  shall  not  be  subject  to  execution  for  any  "  debts  growing  out  of, 
or  founded  upon,  contract  either  express  or  implied,  made  after  the  third 
day  of  July,  1848;  "  and  provides  that  the  exemption  shall  continue  while 
the  homestead  shall  be  occupied  by  the  widow  or  minor  child  of  any  one 
entitled  to  it  while  living.  Exemption  does  not  hold  against  a  mortgage 
given  to  secure  purchase-money  for  the  homestead,  nor  against  a  mort- 
gage given  prior  to  the  date  of  the  statute,  nor  against  taxes. 

When  forced  sale  is  pending  against  property  including  the  homestead, 
the  owner  may  notify  the  officer  in  charge  and  have  it  set  off  when  it  is 
exempt  and  reserved  from  sale.  If  the  creditor,  or  party  adversely  in- 
terested to  the  claimant  of  the  homestead,  complain  that  too  much  has 
been  set  off,  the  officer  in  charge  of  the  writ  shall  have  the  land  surveyed, 
BO  that  the  statutory  portion,  including  the  dwelling,  may  be  assigned  to 
the  beneficiary  of  the  homestead  exemption. 

Indivisible  property  including  the  homestead,  all  worth  more  than  the 
exemption  limit,  so  found  by  jurors  selected  for  the  purpose,  may  be 
sold  and  the  sum  of  $1,500  paid  the  beneficiary  out  of  the  proceeds,  un- 
less he,  upon  receiving  the  required  prior  notice,  has  paid  the  debt,  less 
that  sum,  within  sixty  days  from  notice.  The  sum  received  by  the  debtor 
upon  sale  is  exempt  for  a  year.  If  no  bid  exceed  $1,500  there  can  be  no 
adjudication. 

One  "  owning  and  occupying  any  house  on  land  not  his  own,"  claiming 
it  as  a  homestead,  shall  be  entitled  to  the  exemption. 

Howell's  An.  Stat  of  Mich.,  §§  7721-9. 
Minnesota.  A  dwelling-house  and  appurtenances,  with  eighty  acres  of 
land,  selected  by  the  owner,  outside  the  platted  portion  of  any  incorpo- 
rated town,  is  exempted.  Or,  the  owner  may  select  a  lot  within  such 
town,  or  half  an  acre  therein  if  there  are  less  than  five  thousand  inliabit- 
ants,  together  with  the  dwelling-house  and  appurtenances.  Ownership  and 
occupancy  and  state  residency  are  required.  Such  property  is  free  from 
attachment  or  sale  upon  execution.  It  continues  exempt  while  occupied 
by  the  widow  or  minor  children  of  the  deceased  owner  who  had  enjoyed 
the  exemption.  A  deserted  wife  or  minor  children  may  occupy  the  home- 
stead and  enjoy  its  protection  from  forced  sale,  when  the  husband  or 
father,  who  owns  the  property,  has  absconded  and  left  them. 

Mortgages  and  conveyances  require  the  wife's  signature,  unless  the  mort- 
gage is  to  secure  the  purchase-money.  The  exemption  does  not  aticot 
liens  for  improvements,  or  taxes,  or  those  arising  by  operation  of  law ; 
but  ordinary  judgments  create  no  liens  on  the  homestead.  The  house- 
holder may  claim  his  homestead  when  a  levy  is  pending ;  and  if  there  is 
any  contest  respecting  it  between  the  plaintiff  and  defendant  the  statute 
presci,-ibe8  certain  proceedings,  a  survey,  etc. 


APPENDIX.  966 

Mississippi.  Thp  constihition  rpquiros  the  legislntnre  to  pnss  a  homestead 
law.  Every  citizen  householder  who  is  the  head  of  a  family  may  hold 
his  country  residence  which  he  occupies  with  his  family,  to  the  amount 
of  one  hundred  and  sixty  acres,  exemjit  from  execution  or  attachment. 
The  value  including  improvements  must  not  excoeil  .$2,000,  unless  the 
homestead  be  recorded  as  such,  when  there  may  be  $.3,000  of  value. 

Such  citizen,  in  town,  has  like  limitations  of  homestead  value.  Decla- 
ration must  be  made,  showing  the  selection  of  property  and  describing  it, 
and  causing  it  to  be  recorded  in  a  book  called  "The  Homestead  Record," 
if,  whether  in  town  or  country,  the  beneficiary  wishes  to  avail  himself  of 
the  larger  exemption. 

When  not  selected  by  the  beneficiary,  homestead  is  designated  by  law, 
consisting  of  land  in  the  form  of  a  square  or  parallelogram  if  practicable  or 
contiguous  parcels,  with  the  family  dwelling  and  its  appurtenances  thereon 
limited  to  one  hundred  and  sixty  acres  and  to  $2,000  of  value.  If  excess- 
ive, the  excess  is  cut  off  by  appraisers  making  the  homestead  estimate, 
and  is  liable  to  execution.  If  indivisible,  all  is  sold  and  $2,000  saved  to 
the  debtor  from  the  proceeds  of  an  ordinary  homestead,  or  $8,000  from  a 
recorded  one.  Provision  is  made  for  contestation  of  the  allotment.  Lia- 
bility for  purchase-money,  taxes,  assessments,  labor  or  material  for  home- 
stead, and  "  upon  a  forfeited  recognizance,'"  continues  unaffected  by  the 
exemption. 

Permanent  removal  from  the  homestead  is  abandonment.  The  property 
may  be  disposed  of  by  the  owner  without  subjecting  it  to  liability  for  his 
debts  beyond  those  mentioned.  The  wife  must  join  in  conveying  and  in- 
cumbering any  homestead  property  of  her  husband  which  they  occupy 
together.  She  has  the  same  rights  and  liabilities,  when  she  is  the  owner, 
as  a  husband  is  above  shown  to  have;  and  she  cannot  sell  or  incumber 
her  homestead  without  his  joining :  both  living  together  upon  it.  The  bene- 
fits of  the  exemption  laws  are  accorded  to  women  citizens  as  well  as  to 
men. 

Code  of  Miss.,  1893. 
Missouri.  Every  householder  or  head  of  a  family  may  claim  exemption  in 
the  realty  he  uses  as  his  home  within  the  following  limitations :  one  hun- 
dred and  sixty  acres,  in  the  countr}-,  worth  not  more  than  $1.-500 ;  or 
eighteen  squai'e  rods,  in  a  town  of  forty  thousand  inhabitants,  worth  no 
more  than  $3,000  ;  or  thirty  square  rods,  in  a  town  of  ten  thousand  inhabit- 
ants and  less  than  forty  thousand,  worth  no  more  than  $1,500 ;  or  five 
acres,  in  a  town  of  less  than  ten  thousand  inhabitants,  worth  no  more 
than  $1,500.  A  married  woman  may  claim  homestead  in  a  tract  or  lot 
occupied  by  her  and  her  husband,  or  by  her  alone  if  he  has  abandoned  the 
property  as  homestead.  The  claim  must  be  duly  acknowledged  bj'  her  in 
such  case.  He  cannot  sell  or  incumber  such  dedicated  property.  He  and 
she  may  jointly  convey  or  mortgage  their  homestead.     Rev.  Stat,  §  5435. 

If  the  homestead  is  excessive  in  value,  the  head  of  the  family  may  des- 
ignate the  portion  he  claims ;  or,  on  his  failure  to  do  so,  the  sheriff  in 
charge  of  an  execution  against  the  property  shall  appoint  appraisers  to 
lay  off  the  exempt  portion.  If  excessive  and  mortgaged,  the  segregation 
is  made  in  like  manner.    lb.,  §§  5436-7. 


966  APPENDIX. 

Missouri  —  continued. 

Products  of  the  homestead  are  exempt  when  claimed.     Tb.,  §  5438. 

On  the  death  of  the  liouseholder,  his  homestead  vests  in  his  widow  and 
children  (free  from  his  debts  unless  legally  charged  thereon  in  his  life- 
time), till  the  majority  of  the  youngest  child  and  the  death  of  the  widow. 
The  interest  of  the  deceased  householder,  "  except  the  estate  of  homestead 
thus  continued,"  becomes  liable  for  his  debts,     lb.,  §  5439. 

Commissioners  to  set  out  homestead  and  dower  must  layoff  the  former 
first ;  and  if  it  equals  a  third  of  the  realty  of  the  estate,  there  can  be  no 
dower  to  the  widow.  In  any  case,  the  dower  is  diminished  by  the  amount 
she  receives  as  homestead.     lb.,  §  5440. 

The  homestead  is  liable  for  antecedent  debts ;  and  for  all  debts  after  a 
new  homestead  has  been  acquired.     lb.,  §§  5441-2. 

Commissioners  set  out  the  homestead  from  the  real  estate  of  the  debtor, 
under  order  of  court.  If  the  property  is  indivisible,  and  all  is  sold  together, 
the  court  controls  the  proceeds.     lb.,  §§  5443-5. 
Montana.     Compiled  Stats.  1887,  §  321 :  There  is  no  exemption  from  pay- 
ment of  the  purchase  price. 

§  322 :  The  limit  is  one  hundred  and  sixty  acres  for  agricultural  pur- 
poses, OK  one-fourth  of  an  acre  in  a  town,  neither  to  exceed  $2,500  in  value. 

§  323 :  Laboi-ers'  and  mechanics'  liens,  and  mortgages  made  by  husband 
and  wife,  and  debts  prior  to  the  homestead  law,  are  not  affected. 

§  324 :  A  defendant  against  whose  property  an  execution  is  pending 
may  notify  the  officer  of  his  homestead  when  it  has  not  been  previously 
selected. 

§  325 :  If  the  plaintiff  is  dissatisfied  with  the  allotment  of  homestead,  he 
may  cause  a  survey  to  be  made. 

§  328 :  The  owner  may  remove  from  his  homestead  yet  not  thus  make 
it  liable.     General  judgments  create  no  lien  on  the  homestead. 

§  329 :  The  widow  of  the  owner  of  the  homestead  takes  the  whole  for 
life. 

f5  330 :  Only  "  married  men  or  the  head  of  a  family  "  are  beneficiaries. 
Nebraska.  The  homestead  is  limited  to  $2,000  in  value  and  one  hundred 
and  sixty  acres  in  extent  not  in  a  village  or  city,  or  to  two  contiguous  lots 
within  it  of  like  value,  either  including  improvements,  selected  by  the 
owner  from  his  separate  property,  or  from  that  of  his  wife  witli  her  con- 
sent. An  unmarried  head  of  a  family  may  select  from  any  of  his  or  her 
property. 

The  homestead  is  exempt  from  execution  except  on  mechanics',  labor- 
ers' and  vendors'  liens,  or  mortgages  given  by  both  husband  and  wife  or 
by  an  unmarried  claimant.  Husband  and  wife  must  join  in  the  incum- 
brance or  conveyance  of  their  homestead. 

When  execution  is  levied  against  lauds  including  the  homestead  not 
liable  tliereto,  the  head  of  family  owning  it  must  notify  the  officer  of  his 
right  and  give  a  description  of  the  premises  claimed  to  be  exempt :  where- 
upon, only  the  remainder  shall  be  liable  to  the  levy;  but  the  judgment 
creditor  may  cause  the  land  claimed  to  be  appraised.  If,  from  the  report 
of  appraisers,  it  appear  that  the  land  seized  is  divisible,  the  court  shall 
order  the  homestead  to  be  set  off:  otherwise,  all  must  be  sold,  and  the 


APPENDI3L 


967 


Nebraska  —  continued, 
homestead  claimant  recompensed  out  of  the  proceeds.  If  sale  to  an 
amount  not  exceeding  the  liomestead  value  cannot  be  effected,  there  can 
be  no  adjudication  to  any  bidder.  The  sum  in  lieu  of  homestead  stands 
exempt  for  six  months,  in  case  the  land  be  sold.  The  same  rule  applies  to 
any  suri)lus  remaining  after  sale  of  homestead  on  allowable  liens. 

"Head  of  family"  is  defined  as  in  statutes  of  California. 

The  sale  of  one  homestead  does  not  preclude  the  establishment  of  an- 
other. 

Compiled  Stat.  (1889),  ch.  30,  gt?  1-16. 
Nevada.     There  shall  be  a  homestead  exempt,  as  provided  by  law.    Const 
Nev.,  art.  IV,  g  30. 

Homestead  is  limited  to  $5,000  in  value,  selected  by  the  head  of  a  family 
as  in  Nebraska,  and  liable  only  to  such  debts  as  are  collectible  against  it 
in  that  state  and  debts  existing  prior  to  November  13,  1861. 

A  declaration  must  be  filed  by  the  claimant,  or  by  the  claimants  if  they 
be  man  and  wife.  Separate  property  of  either  being  dedicated  as  a  home- 
stead, returns  to  the  owner  or  to  his  or  her  heirs  on  the  death  of  the  other 
spouse.  Tenants  in  common  may  declare  upon  their  rights  of  estate,  sub- 
ject to  the  rights  of  co-tenants. 

Written  declaration  is  essential  to  abandonment,  signed  by  the  head  of 
the  family,  and  by  his  wife  when  the  declarant  is  married,  and  duly  re- 
corded. The  wife's  declaration  is  taken  separately,  and  apart  from  her 
husband.  Prior  to  dedication,  the  land  may  be  conveyed  or  incumbered 
without  her  joinder  if  she  be  a  non-resident  of  the  state. 

Creditors  may  swear  that  they  believe  a  homestead  proceeded  against 
by  levy  is  worth  more  than  the  limited  amount,  and  then  appraisers  make 
estimate  and  report  to  the  court,  and  thereupon  proceedings  are  had  as  in 
Nebraska.  Five  thousand  dollars  are  reserved  out  of  the  proceeds  of  sale 
for  the  homestead  owner  whose  home  has  been  sold  as  not  susceptible  of 
separation  from  the  other  land  levied  upon,  which  has  the  exempt  char- 
acter as  did  the  homestead. 

On  the  death  of  either  husband  or  wife,  the  homestead  reverts  to  the 
survivor.  The  children  share  in  the  benefit.  If  neither  a  spouse  nor  child 
survive,  the  estate  is  to  be  administered  as  in  ordinary  cases,  and  debts  of 
the  decedent  paid. 

Genl.  Stat,  §§  539-542. 
New  Hampshire.  The  wife,  widow  and  children  of  any  person  owning  a 
homestead,  or  any  interest  therein,  occupied  by  him  or  her  or  his  or  her 
family,  shall  be  entitled  thereto  to  the  amount  of  $500  against  creditors, 
grantees  and  heirs  of  such  person  during  the  life  of  such  wife  or  widow 
and  the  minority  of  such  children.  Should  the  husband  survive  the  wife 
and  the  time  when  all  the  children  are  of  age,  he  shall  enjoy  the  ex- 
emption. 

No  mortgage  made  by  him  alone,  except  to  secure  the  purchase-money 
of  the  homestead,  shall  be  valid  so  as  to  affect  the  interest  of  his  wife, 
widow  or  children. 

The  deed  of  the  husband  and  wife,  or  the  deed  of  the  survivor,  or  of 
either,  sl.onld  one  be  insane,  if  approved  by  the  probate  judge,  shall  bar 
the  right  of  homestead  above  stated. 


968  APPENDIX. 

New  Hampshire  —  continued. 

After  tlie  death  of  one  owning  a  homestead,  or  after  any  conveyance 
thereof,  the  judge  of  probate,  on  petition,  may  cause  a  homestead  to  be 
setoff  in  the  same  manner  as  dower  may  be  assigned  by  liim.  If  the  legal 
title  was  in  the  wife,  and  the  husband  survives  her.  he  shall  have  his  life 
estate  therein  exempt  to  the  amount  of  $500,  after  the  children  shall  have 
arrived  at  twenty-one  years  of  age. 

Like  exemption  is  extended  to  the  unmarried  occupant  or  owner  of  his 
homestead. 

An  officer,  charged  with  an  execution  against  the  property  of  the  hus- 
band, shall  cause  a  homestead  to  be  set  off,  on  written  application  of  the 
husband,  wife,  or  children  by  their  guardian  or  next  friend,  such  as  the 
applicant  select.  It  shall  be  set  off  by  appraisers  (one  selected  by  the  ap- 
plicant), whose  certificate  showing  the  metes  and  bounds  shall  be  recorded 
with  the  proceedings  of  the  execution.  The  court  may  order  a  re-appraise- 
ment upon  good  cause  shown,  and  a  re-assignment  of  the  homestead. 
Such  proceedings  had  and  recorded  make  good  title  to  the  wife,  widow 
and  children,  and  to  the  debtor  himself  for  the  term  before  expressed, 
against  his  creditors,  heirs  and  grantees. 

Indivisible  property  may  be  appraised  and  sold  under  execution,  if  the 
applicant  for  the  setting  off  of  the  homestead,  upon  notice,  do  not  pay 
the  debt  except  the  sum  exempt  within  sixty  days  from  appraisement, 
provided  the  creditor  advance  $500  to  the  officer  to  secure  the  exemption 
right. 

If  the  surplus  be  not  paid  by  the  debtor  and  the  advance  not  made  by 
the  creditor,  there  can  be  no  sale  unless  a  bid  exceed  $500,  and  only  the 
excess  can  be  applied  to  the  debt  and  costs.  The  sum,  $500,  stands  in 
lieu  of  the  homestead,  exempt  for  one  year. 

Genl.  Laws,  ch.  138,  pp.  330-2. 
New  Jersey.  A  homestead  is  exempt  to  the  value  of  $1,000,  if  occupied 
as  a  residence  and  dedicated  and  recorded.  If  the  officer,  in  charge  of  an 
execution,  thinks  the  homestead  of  the  debtor  worth  more,  he  may  cause 
it  to  be  appraised,  and  the  excess  may  be  sold.  If  the  i^roperty  is  indivis- 
ible, all  may  be  sold,  and  $1,000  of  the  proceeds  reserved  for  the  debtor. 
Both  husband  and  wife  must  join  in  a  private  sale  or  an  incumbrance  of 
the  homestead,  unless  the  owner  sell  it  at  a  fair  value  and  invest  $1,000  of 
the  price  in  a  new  homestead-  Revision  of  N.  J.  Laws,  p.  1055. 
New  Mexico.  There  is  exempt  to  the  head  of  a  family  a  homestead  not 
exceeding  $1,000  in  value.  The  exemption  is  from  attachment  or  seizure 
by  any  other  civil  process.  The  usual  conditions,  restraints  and  liabilities 
need  not  be  repeated.  N.  M.  Comp.  Laws. 
New  York.  A  lot  with  one  or  more  buildings  not  worth  more  than  $1,000, 
"  owned  and  occupied  as  a  residence  by  a  householder  having  a  family," 
designated  as  an  exempt  homestead,  is  exempt  from  execution  for  debt 
contracted  after  April  30.  1850,  unless  before  the  designation  or  for  the 
purchase-money. 

A  conveyance  of  the  property  stating  that  it  is  designed  to  be  held  as  a 
homestead  exempt  from  sale  on  execution  must  be  recorded ;  or,  a  no- 
tice with  a  description  of  it,  so  stating,  written,  acknowledged  and  sub- 


APPENDIX.  9t)9 

"NeTV  York  —  continued, 
scribed  by  the  owner,  as  a  deed,  must  be  recorded  in  the  Homestead 
Exemption  Book  in  the  clerk's  office  of  the  county.    Like  property  owned 
by  a  married  woman  and  occupied  by  her  as  a  residence  may  be  desig- 
nated in  like  manner,  with  like  effect. 

The  exemption  continues  after  the  death  of  a  woman  homestead  owner 
until  the  majority  of  the  youngest  surviving  child  ;  and,  after  the  death 
of  a  man  homestead  owner,  till  the  death  of  his  widow  and  the  majority 
of  such  child ;  but,  in  either  case,  occupancy  as  a  residence  by  the  ben- 
eficiary is  essential,  unless  the  dwelling  be  injured  or  destroyed,  when 
occupancy  may  be  suspended  for  one  year. 

The  property  cannot  be  sold  on  execution  issued  upon  a  judgment,  as 
against  which  it  is  exempt,  though  it  may  be  worth  more  than  $1,000. 
After  the  return  of  the  execution,  the  owner  of  the  judgment  may  main- 
tain a  judgment  creditor's  action  to  procure  a  judgment  directing  a  sale 
of  the  property  and  enforcing  his  lien  upon  the  surplus. 

The  defendant  is  entitled  to  f  1,000  of  the  proceeds,  to  be  exempt  for  a 
year  as  the  land  was,  and  with  the  same  exceptions,  unless  he  should 
designate  another  homestead  within  that  time.  Should  the  defendant  die 
before  receiving  such  proceeds  of  sale,  the  court  may  direct  the  money 
to  be  invested  for  the  benefit  of  those  entitled  to  the  exemption,  "  or  to  be 
otherwise  disposed  of  as  justice  requires." 

The  homestead  owner  may  cancel  all  exemptions  by  subscribing  and 
acknowledging  and  recording  a  notice  to  that  effect,  describing  the  prop- 
erty thus  released.  All  other  methods  of  release  or  waiver  are  inhibited. 
Such  cancellation  must  precede  the  making  of  a  valid  mortgage  upon 
the  land,  unless  for  its  purchase-money. 

Throop's  Ann.  Code,  §§  1397-1404. 
North  Carolina.  Every  homestead  and  buildings  thereon,  to  be  selected 
by  the  owner,  or,  in  lieu  thereof,  a  town  lot  and  buildings  thereon,  owned 
and  occupied  by  a  resident  of  the  state,  not  exceeding  in  value  $1,000, 
shall  be  exempt,  except  from  obligation  or  debt  contracted  for  the  pur- 
chase of  the  premises,  or  for  taxes,  or  for  a  claim  for  services  thereon  by 
a  mechanic  or  laborer. 

The  homestead  cannot  be  mortgaged  or  alienated  without  the  joint 
consent  of  husband  and  wife. 

The  homestead  estate  continues  exempt  from  the  owner's  debts  after  his 
death,  during  the  minority  of  any  of  his  children,  and  during  the  widow- 
hood of  his  widow  unless  she  be  the  owner  of  a  homestead  in  her  own 
right 

Const.,  art  X,  sees.  2,  3.  4,  8. 

The  statute  is  in  accord.  The  homestead  of  a  resident  is  not  subject  to 
the  lien  of  any  judgment  except  for  purchase-money,  for  meciianical  or 
other  work  done  for  the  claimant  of  the  homestead,  and  for  taxes.  Code 
of  N.  C,  1883. 
North.  Dakota.  A  homestead  owned  by  either  husband  or  wife,  not  ex- 
ceeding in  value  $5,000,  consisting  of  a  dwelling-house  in  which  the 
homestead  claimant  resides  and  all  its  appurtenances  and  the  land  on 


970  APPENDIX. 

North  Dakota— continued. 

which  the  same  is  situated,  shall  be  exempt  from  judgment  lien  and  from 
execution  or  forced  sale,  except  as  follows : 

The  homestead  is  subject  to  execution  or  forced  sale  in  satisfaction  of 
judgment  obtained :  First.  On  debt  secured  by  mechanics'  or  laborers' 
liens  for  work  or  labor  done,  or  material  furnished,  exclusively  for  the 
improvement  of  the  same.  Second.  On  debts  secured  by  mortgage  on  the 
premises,  executed  and  acknowledged  by  both  husband  and  wife,  or  by 
an  unmarried  claimant  Third.  On  debts  created  for  the  purchase 
thereof,  and  for  all  taxes  accruing  and  levied  thereon. 

If  the  land  claimed  as  homestead  can  be  divided  without  material  in- 
jury the  court  shall  order  the  appraisers  to  set  off  such  portion,  including 
the  I'esidence,  as  will  amount  in  value  to  the  homestead  exemption, 
Ohio.  "  Husband  and  wife  living  together,  a  widow,  or  a  widower  living 
with  an  unmarried  daughter  or  unmarried  minor  son,  may  hold  exempt 
from  sale  on  judgment  or  order  a  family  homestead  not  exceeding  $1,000 
in  value ;  and  the  husband,  or,  in  case  of  his  failure  or  refusal,  the  wife, 
shall  have  the  right  to  make  the  demand  therefor ;  but  neither  can  make 
such  demand  if  the  other  has  a  homestead."    Rev.  Stat.,  §  5435. 

A  dwelling  situated  on  land  leased  from  another,  belonging  to  and  oc- 
cupied by  any  of  the  persons  above  mentioned,  may  become  a  homestead 
exempt  like  otlier  homesteads.     Ih,  ^  5436. 

A  homestead  shall  be  set  apart  for  the  widow  and  unmarried  children 
of  a  decedent,  or  for  both,  on  petition  of  an  executor  or  administrator  for 
the  sale  of  the  lands  to  pay  debts,     lb..  §  5437. 

An  officer  charged  with  the  execution  of  a  judgment  may  cause  ap- 
praisei's  to  set  off  a  homestead  on  application  of  the  debtor,  his  wife,  agent 
or  attorney,  if  the  debtor  has  a  family,  if  the  lands  against  which  the 
writ  is  directed,  or  those  seized  under  the  writ,  include  the  homestead. 
The  part  set  off  must  be  worth  no  more  than  $1,000.  If  no  application 
be  made  by  the  debtor  it  may  be  made  by  his  widow  before  sale.  lb., 
§  5438. 

When  the  homestead  of  a  debtor  will  not  bear  division  without  injury, 
the  plaintiff  in  execution  against  it  shall  be  paid  rental  excessive  of  $100 
per  annum,  payable  quarterly,  in  lieu  of  the  proceeds  of  sale,  if  the  owner 
will  pay  him  such  rental ;  but,  if  he  will  not,  the  homestead  shall  be  sold 
at  not  less  than  its  appraised  value.     lb.,  §  5439. 

When  a  homestead  is  charged  with  liens  which  preclude  the  allowance 
of  the  exemption,  and  with  other  liens  which  do  not  preclude  it,  the  for- 
mer being  paid  out  of  the  proceeds  of  the  sale  of  the  premises,  the  balance 
may  be  paid  to  the  husband  debtor  or  his  wife  to  the  amount  of  $500,  in 
lieu  of  homestead,  on  his  or  her  application.    lb.,  §  5440. 

Others,  entitled  to  homestead,  maj'  take  $500  in  place  of  it,  in  personal 
property.     lb.,  ^  5441. 

Mortgage  must  be  executed  by  both  husband  and  wife  to  make  it  hold 
the  homestead.  A  sale  under  one  which  she  has  not  executed  cannot 
estop  her  right  to  have  a  homestead  laid  off.     lb..  §  5442. 

How  homestead  is  set  off  to  widow  and  minors  in  an  action  to  sell  de- 
cedent's real  estate.     lb.,  §  6155. 


APPENDIX  971 

Ohio  —  continued. 

Of  insolvent  debtor,  how  exempted.     lb.,  §g  6348,  fi351. 

Liable  for  taxes,  lb.,  §§  2859,  5434 ;  and  on  mechanic's  lien,  lb.,  g§  3185, 
320G(f,  5434. 
Oklahoma.  The  head  of  a  resident  family  may  hold  exempt  from  at- 
tachment, execution,,  or  forced  sale  for  the  payment  of  debts  (except  as 
hereafter  stated),  a  homestead  not  exceedijig  one  hundred  and  sixcy  acres 
in  one  tract,  or  an  acre  in  town,  with  the  improvements,  if  used  as  the 
home  of  his  family.  He  may  rent  the  homestead  temporarily  The 
mortgage  of  the  dwelling-house  and  eighty  acres  of  the  land  is  inhibited. 
Homestead  is  denied  to  corporations,  non-residents,  debtors  in  the  act  of 
removing  their  families  from  the  territory,  or  who  have  absconded  and 
taken  their  families  with  them.     ti§38G0-],  ch.  34,  p.  570. 

The  exceptions  above  indicated  as  to  debts  are :  First.  When  a  debt  is 
due  for  purchase-money.  Second.  For  taxes  on  the  homestead.  Thud. 
For  work  and  material  in  making  improvements  thereon,  when  the  con- 
tract therefor  is  in  writing,  with  the  wife's  assent  if  the  amount  is  above 
$100.     §  2863. 

The  surviving  spouse  may  hold  the  homestead  till  it  shall  have  been 
disposed  of,  according  to  law.  The  children  hold  till  the  majority  of  the 
youngest,  when  both  parents  are  dead.     §  1375,  ch.  19,  p.  317. 

If  no  homestead  has  been  selected,  platted  and  recorded,  the  probate 
judge  orders  it  to  be  done.     §  1377. 

The  homestead  is  not  liable  for  a  debt  against  the  husband  or  wife,  ex- 
isting before  the  debtor's  death,  unless  it  come  under  one  of  the  above 
exceptions.     §  1378. 

Stat,  of  Ok.  1890. 
Pennsylvania.     There  is  no  homestead,  strictly  speaking. 

Property  to  the  extent  of  $300,  owned  or  possessed  by  any  debtor,  shall 
be  exempt  froin  levy  and  sale  on  execution  or  by  distress  for  rent.  The 
privilege  is  personal  and  may  be  waived. 

Appraisers  shall  be  appointed  at  the  request  of  the  defendant,  and  the 
property  selected  and  appraised  is  free  from  execution,  except  for  taxes, 
though  liens  for  purchase-money  of  the  real  estate  are  not  impaired. 

If  the  property  levied  upon  exceed  $300  in  value,  and  is  indivisible,  the 
defendant  is  entitled  to  that  sum  from  the  proceeds.  The  widow  and 
children  are  entitled  to  the  same  amount  from  the  estate  of  the  deceased 
husband  and  father. 

The  exemption  affects  only  debts  contracted  on  or  after  the  passage  of 
the  law. 

Brightly's  Pardon's  Dig.,  vol.  1,  pp.  63G-8. 
South  Carolina.  The  constitution  requires  the  legislature  to  exempt  from 
attachment  and  sale  under  any  process,  the  homestead  of  the  resident 
head  of  a  family,  in  land  held  in  fee  or  less  estate,  not  exceeding  $1,000  in 
value.  A  luarried  woman  who  has  a  separate  estate,  while  her  husband 
has  less  than  the  homestead  limit  of  value,  may  claim  the  exemption  ;  but 
both  together  cannot  have  exemption  of  realty  beyond  that  limit.  No 
property  is  exempt  from  taxes,  purchase-money  and  cost  of  improve- 
ments.    The  homestead  riffht  cannot  be  waived.     Const.,  art.  II,  ^  32. 

The  statute  embodies  these  provisions  and  provides  for  their  enforcement. 


972  APPBNnix. 

South  Dakota,  The  homestead  within  an  incorporated  town  is  one 
acre,  wliich,  with  the  dwelling  and  appurtenances,  must  not  exceed  $5,000 
in  value.  The  homestead,  beyond  corporation  limits,  must  not  exceed 
one  hundred  and  sixty  acres  in  extent,  and  $5,000  in  value.  There  are  the 
usual  restrictions  and  exceptions.  The  statutes  relative  to  homestead  are 
in  sections  24  to  57  of  the  Compiled  Laws.  See  ch.  88,  p.  200,  of  Session 
Acts  of  1890;  Session  Acts  of  1891. 

As  many  of  the  homesteads  in  the  new  states  of  North  and  South  Da- 
kota were  acquired  under  the  territorial  statutes  which  still  govern  as  to 
the  acquisition  and  debts  then  existing,  the  following  notes  on  those  stat- 
utes are  presented : 

The  homestead  of  every  family,  owned  by  either  husband  or  wife,  shall 
be  exempt  from  execution,  except  for  taxes  and  on  mechanic's  lien  for 
work  or  material  in  improving  the  exempt  property.  Should  a  husband 
or  wife  survive  the  other  spouse  and  contmue  to  occupy  the  homestead, 
whether  with  children  or  without,  the  exemption  shall  continue  in  favor 
of  such  occupant.  Husband  and  wife  must  join  in  any  instrument  of 
conveyance  or  incumbrance. 

When  one  owns  more  than  one  dwelling,  he  must  select  the  one  he 
would  hold  as  exempt 

The  homestead  may  embrace  contiguous  lots  or  tracts  with  buildings 
and  appurtenances,  and  may  embrace  lots  or  tracts  not  contiguous,  if 
habitually  used  in  good  faith  as  one  homestead ;  but  it  must  be  limited  to 
one  acre  within  a  town  plat,  and  to  one  hundred  and  sixty  acres  other- 
wise. If  the  homestead  is  claimed  upon  any  land  claimed  under  the  laws 
of  the  United  States  relating  to  mineral  lands,  it  shall  be  limited  to  one 
•  acre  whetlier  within  a  town  plat  or  not 

It  must  not  embrace  two  dwellings,  but  may  include  a  business  shop 
used  by  the  owner. 

[The  Dakota  provisions  are  in  these  and  other  respects  not  repeated,  like 
those  of  Iowa,  which  see.] 

Compiled  Laws  of  Dak.,  1887,  §§  2449-2468,  5778-5781. 
Tennessee.     A  homestead  and  improvements  to  the  value  of  $1,000,  in 
possession  of  a  head  of  a  family,  is  exempt,  except  against  a  claim  for 
purchase-money  therefor  or  improven:ients  thereon,  or  for  taxes. 

Alienation  of  the  homestead  of  a  married  person  can  be  only  with  the 
joint  consent  of  the  husband  and  the  wife. 

The  exemption  inures  to  the  benefit  of  the  widow,  and  continues,  as  to 
the  owner's  debts,  after  his  death,  during  the  minority  of  any  of  his  chil- 
dren. 

Const,  art  XI,  sec.  11. 

The  homestead  of  a  decedent  head  of  a  family  to  the  value  of  $1,000,  "  or 
real  estate  "  of  that  value,  is  laid  off  to  the  widow  and  children.  The  hus- 
band and  wife  jointly  may  sell  the  homestead.  A  debtor  may  claim  land 
as  exempt  which  is  not  occupied  as  a  home.  A  leasehold  homestead  is 
not  exempt  from  rents.  Code,  §8  2935-2939. 
Texas.  The  homestead  of  a  family  to  the  amount  of  two  hundred  acres  of 
land  with  improvements,  or  a  lot  or  lots  in  a  town  to  the  value  of  $5,000, 
exclusive  of  improvements,  with  the  improvements  thereon,  used  as  a 
home  or  as  a  place  of  business  by  the  head  of  the  family,  is  exempt  ex- 


APPENDIX,  973 

Texas  —  continued, 
cept  upon  a  claim  for  the  purchase-money  thereof,  or  for  improvements 
tliereon,  or  for  taxes. 

It  cannot  be  aheuated  without  the  joint  consent  of  tho  liusband  and 
wife,  when  the  owner  is  married. 

No  mortgage,  Hen  or  trust  deed  on  the  homestead  is  valid  (except  as 
above  stated),  whether  created  by  husband  and  wife  or  by  one  alone,  and 
all  pretended  sales  of  the  homestead  involving  any  condition  of  defeas- 
ance are  void.  No  temporary  renting  shall  change  the  ciiaiactn- of  the 
homestead  when  another  homestead  has  not  been  acciuiied. 

"On  the  death  of  the  husband,  wife,  or  both,  the  hoini'.stea<l  descends 
and  vests  like  other  real  property  of  the  deceased  and  shall  be  governed 
by  the  same  laws  of  descent  and  distribution,  but  shall  not  be  partitioned 
among  the  heirs  of  the  deceased  during  the  life-time  of  the  husband  or 
widow,  or  so  long  as  he  or  she  shall  occupy  or  use  the  same  as  a  home- 
stead, or  the  guardian  of  minor  children  shall  be  permitted  so  to  do  by 
order  of  court" 

Const.,  art.  XVI,  §§50,  51,  52;  Sayles'  Texas  Stat.,  188«. 
Utah.  Comp.  Laws  1888,  §  3429  (11) :  Homestead  of  the  value  of  $1,000  is 
exempt  to  the  resident  married  householder ;  $500  to  his  wife  in  addition ; 
and  $250  to  each  of  his  children,  in  further  addition.  If  excessive  it  may 
be  partitioned  or  sold  at  the  option  of  the  debtor.  If  sold,  he  takes  the 
proceeds  to  the  exempt  amount,  which  remains  exempt.  Appraisers  are 
selected  before  sale,  one  by  the  debtor  and  one  by  ihe  creditor;  and  a 
third  is  chosen  in  case  of  disagreement.  The  homestead  is  liable  for  pur- 
chase-money, liens  and  taxes.     Compiled  Laws,  voL  II,  p.  308. 

The  homestead  must  be  included  by  the  executor  or  administrator  in 
the  inventory  of  the  estate  of  the  deceased  exemptionist.     lb.,  p.  484. 

When  a  homestead  is  set  apart  by  a  judgment  of  court,  the  decree  must 
be  recorded  in  the  recorder's  office  of  the  county  where  the  land  lies. 
lb.,  p.  539. 

The  widow  and  children  of  a  deceased  exemptionist  are  entitled  to  oc- 
cupy the  homestead,  until  letters  of  administration  have  been  granted 
and  the  inventory  returned.  The  court  must  make  reasonable  allowance 
for  their  support,  and  may  set  apart  all  the  exempt  property  for  that  pur- 
pose. 16.,  p.  489. 
Vermont.  A  homestead  is  exempt  to  the  value  of  $500.  It  consists  of 
a  dwelling-house  and  appurtenances  and  the  land  on  which  they  are 
situated,  while  "  used  or  kept "  as  a  home  by  a  housekeeper  or  head  of  a 
family.  Permanent  I'emoval  forfeits  exemption.  The  homestead  deed 
must  be  recorded  prior  to  the  contracting  of  tlie  debt,  to  secure  immunity 
from  it  Leaving  it  for  record,  at  the  proper  office,  is  compliance  with 
this  requirement  on  the  part  of  the  beneficiary.  Homesteads  are  liable 
for  purchase-money,  antecedent  debts,  lien,  taxes,  etc.  The  widow  may 
claim  both  dower  and  homestead  in  her  deceased  husband's  real  estate  — 
the  former  for  life  and  the  latter  in  fee.  The  husband  alone  may  mort- 
gage the  homestead  after  divorce  from  his  wife ;  but  while  botli  are  oc- 
cupants and  in  marriage,  both  must  join  to  sell  or  incumber  it  Rev. 
Laws. 


974  APrENi;)ix. 

Virginia.  Every  householder  or  head  of  a  family  is  entitled  to  exemption 
of  realty  and  personalty,  or  either,  to  the  amount  of  $2,000.  Const.,  art.  11, 
§  1.     See  ante,  p.  53. 

There  is  exenijjtion  of  realty  and  personalty  to  the  amount  of  .$3,000. 
This  may  be  wholly  in  realty,  or  wholly  in  personalty,  or  in  both  together; 
it  may  include  money  or  debts  due  the  beneficiary.  He  selects  from  all 
his  property  to  the  maximum  allowance,  or  less.  The  exetuptionist  must 
be  a  householder  or  the  head  of  a  familj',  and  a  resident  of  the  state. 
His  selection  of  realty  must  be  recorded.  There  are  special  chattel  ex- 
emptions in  addition  to  the  foregoing. 

Homestead  protection  from  forced  sale  can  be  secured  only  by  record- 
ing the  deed  of  the  property  in  the  proper  office  of  the  county  in  which 
it  is  situated,  with  a  declaration  of  intention  to  claim  it  as  a  homestead 
and  a  description  of  it.  After  the  death  of  the  head  of  the  family,  hia 
widow  may  continue  to  enjoy  the  property  till  her  death  or  remarriage. 
The  minor  children  may  enjoy  it  till  the  youngest  reaches  majority. 
When  the  homestead  right  has  ceased,  the  property  passes  to  the  heirs  ac- 
cording to  the  laws  of  descent 

The  homestead  is  not  exempt  from  liabilities  for  purchase-money,  im- 
provements, services  of  laborers  and  mechanics,  taxes,  rents,  court  fees, 
debts  incurred  by  persons  in  a  fiduciary  capacity,  and  debts  mcun-ed  with 
exemption  waived. 

Code  (1887),  §§  3630-3657 ;  Const,  art  XI,  ^§  1-3. 
Washington.     A  homestead  to  the  value  of  $1,000  is  secured  to  the  head 
of  a  family  when  occupied  by  him  and  his  family.     There  is  no  quan- 
titative limit     Code,  §  342. 

The  survivor  of  married  beneficiaries  becomes  "  entitled"  to  the  home- 
stead if  there  are  no  minor  children.  If  there  is  no  marital  survivor  and 
no  minor  child,  the  homestead  becomes  liable  to  creditors.     lb.,  §  343. 

The  owner  and  his  wife  jointly  may  mortgage  the  homestead.  lb.,  §  344. 
It  is  liable  for  purchase-money,  etc. 
"West  Virginia.  A  homestead,  with  improvements,  to  the  value  of  $1,000, 
possessed  by  the  head  of  a  family,  is  exempt  except  as  against  a  claim 
for  purchase-money,  or  for  improvements  on  the  premises,  or  for  taxes. 
The  exemption  continues  after  the  owner's  death,  with  respect  to  his  debts, 
during  the  minority  of  any  of  his  children.     Const,  art  VI,  §  48. 

The  homestead  must  be  recorded  in  the  land  records  of  the  county 
where  it  is  situated  before  the  debt,  against  which  exemption  is  claimed, 
shall  have  been  contracted.  Acts  of  1881,  ch.  19. 
Wisconsin.  The  homestead  is  limited  to  forty  acres  in  the  country,  used 
for  agricultural  purposes,  or  to  one-fourth  of  an  acre  in  town.  It  umst 
be  owned  and  occupied  by  a  resident  of  the  state.  The  exemption  is  from 
seizure  and  execution  upon  any  judgment  lien  except  laborers'  and  me- 
chanics' liens,  and  from  all  debts  except  those  for  purchase-money,  mort- 
gages, taxes,  etc.  It  applies  to  the  proceeds  of  the  sale  of  one  homestead, 
held,  for  two  yeai's  or  less,  for  the  purchase  of  another.  It  is  not  lost  by 
temporary  removal. 

The  husband  and  wife  may  hold  the  homestead  jointly  or  in  common. 
It  is  provided  that  a  tenant  in  common  may  have  the  benefit  of  the  home- 


APPBNDLX.  975 

Wisconsin  —  continueA 
stead  exemption  if  hia  co-tenants  consent     The  title  of  the  homestead 
may  be  freehold  or  leasehold.     A  married  man  cannot  alienate  it  without 
the  signature  of  his  wife.    If  she  is  insane,  her  interest  cannot  be  alienated 
except  by  her  guardian  duly  appointed. 

If  the  husband,  who  owns  the  homestead,  dies  inte.state,  it  descends  to 
his  widow  free  from  claims  and  judgments  against  him,  except  as  afore- 
said, if  he  leaves  no  issue.  If  there  be  lawful  issue  the  homestead  de- 
scends to  her  during  widowiiood.  If  he  leaves  no  widow,  child  or  grand- 
child, it  becomes  liable  to  creditors  for  all  his  debts.  He  cannot  direct  the 
payment  of  his  debts  (except  as  aforesaid),  by  his  last  will,  to  the  depriva- 
tion of  the  widow,  minor  children  and  grandchildren,  out  of  his  home- 
stead propert3^  He  may  devise  his  homestead,  and  the  devisee  takes  it 
free  from  claims  agamst  the  testator,  except  the  privileged  ones  above 
mentioned. 

When  the  homestead  and  other  realty  have  been  mortgaged  together 
the  latter  shall  be  first  exhausted  on  demand  of  the  debtor,  if  susceptible 
of  being  separately  sold.  If  both  together  are  indivisible,  the  value  of  the 
homestead  to  the  exemption  limit  shall  be  reserved  from  the  proceeds  for 
the  debtor.  When  levj'  is  made  the  officer  must  lay  ofif  a  homestead  to 
the  debtor  who  now  claims  it  after  having  previously  neglected  to  desig- 
nate one. 

Sanborn  &  B.'s  Ann.  Stat  of  Wis.,  §§  3203-6,  2271,  2280,  2983-4,  3163, 
3823,  3862,  3873. 
Wyoming.  Rev.  Stats.,  §  2780.  Every  householder  in  the  state  of  Wy- 
oming, being  the  head  of  a  familj%  shall  be  entitled  to  a  homestead,  not 
exceeding  in  value  the  sum  of  $1,500,  exempt  from  execution  and  at- 
tachment arising  from  any  debt,  contract  or  civil  obligation  entered  into 
or  incurred. 

§  2781 :  Such  homestead  shall  only  be  exempt  as  provided  in  the  last 
section,  while  occupied  as  such  by  the  owner  thereof,  or  the  person  en- 
titled thereto,  or  his  or  her  family. 

§  2782 :  When  any  person  dies  seized  of  a  homestead,  leaving  a  widow 
or  husband,  or  minor  children,  such  widow  or  husband  or  minor  children 
shall  be  entitled  to  the  homestead,  but  in  case  there  is  no  widow,  liusband 
or  minor  children,  the  homestead  shall  be  liable  for  the  debts  of  the  de- 
ceased, 

§2783:  The  rural  quantitative  limit  is  one  hundred  and  sixty  acres; 
there  is  no  urban  restriction  as  to  quantity. 

§  2784 :  To  sell  or  mortgage  the  homestead,  the  wife  must  join  the  hus- 
band in  the  deed. 


i 


I 


INDEX. 


References  are  to  pages. 

ABANDONMENT  OF  HOMESTEAD  — 
by  permanent  removal,  558,  561. 
when  homestead  uni-ecorded,  560. 
vohmtary,  559. 

by  losing  residence  in  the  state,  560,  561. 
not  by  temporary  removal,  563. 
not,  if  intendmg  to  return,  562-3. 
time  of  absence  considered,  563. 
burden  of  proof,  as  to  absence,  564. 
by  establishing  another  home,  565,  567. 
temporary  absence,  when  allowed  by  statute,  565. 
absence  of  part  of  the  family,  566. 
house  kept  for  return  of  famil}%  567. 

by  mortgaging  old  homestead  and  living  in  a  new  one,  568. 
by  foreclosure  of  mortgage  on  homestead,  571. 
by  acquiring  federal  homestead,  569. 
by  wife,  with  husband,  570,  583. 
reasonable  time  for  transition,  571. 
not  on  losing  home-buildings  by  fire,  571. 
by  leasing  the  premises,  571,  574-5. 
not  by  temporar}'^  leasing,  when,  573. 
by  ceasing  to  own,  575. 
not  by  attempt  to  sell,  578. 
not  by  void  sale,  290. 
by  quitclaim  deed,  579,  741. 
is  a  question  of  fact,  579. 
by  assignment,  580. 
not  by  husband's  desertion,  580. 

wife's  desertion,  580-1,  583-4. 
permanent  absence,  581. 
effect  on  wife's  right,  582-584. 
by  widow,  585-8,  593. 

and  children,  587. 
relative  to  insurance  policy.  608L 
by  other  than  home  use,  743. 
a  question  on  issue  joined,  743. 
ABSCONDING  DEBTOR  — 
as  to  wife's  right,  773. 

62 


978  INDEX. 

ACCOUNT  (see  Liabilities  op  Homesteads)  — 
as  to  antecedent  debts,  280-1. 
marshaled,  350. 

open,  general  rule  as  to  application  of  payments,  351. 
running,  settled  by  giving  note,  351.  « 

when  no  election  made  as  to  application  of  payments,  351,  352. 

ACKNOWLEDGMENT  — 
of  deed,  by  wife,  423-429. 

strictly  according  to  law,  423. 
not  essential,  when,  424. 
certificate  of,  defective,  427, 

will  not  be  reformed,  when,  427. 

sufficiently  formal,  when,  427. 
taken  by  a  clerk  of  probate,  428. 
when  too  late,  429. 

after  husband's  death,  429. 

after  interests  of  others  are  vested,  429, 
to  release  dower  only,  431. 

ACTIONS  (see  Pleading  and  Practice). 

ACTIONS  EX  DELICTO,  913-916. 

exemption  generally  not  allowed  in,  9,  913. 
not  for  debt,  914. 
on  penalties,  914. 
on  tort  by  wife,  915. 
costs,  915. 
ADJOINING  LOTS  (see  Dedication;  Occupancy). 
ADMINISTRATOR  — 

fee  of  homestead  not  an  asset  of  the  estate,  494. 

not  to  administer  the  homestead,  652,  712. 

when  to  hold  possession  of  homestead,  628. 

occupancy  of  homestead,  as  to  administrator's  sale,  493. 

sale  by,  in  general,  490. 

suit  by,  relative  to  creditors,  710-716. 

by  bill  in  equity,  710. 
may  protect  rights  of  creditors,  when,  7131, 
AFFIDAVIT  — 

of  contest  by  creditor,  673-5,  703. 

filed  when,  673-5,  703. 
of  attorney,  when  insufficient,  670-1. 
of  applicant  for  United  States'  homestead,  932,  939. 

must  contain,  what.  982,  939,  946-8. 

may  be  made  by  a  soldier,  how,  934. 

eflfect  of  false  swearing,  934,  938. 
cannot  be  imposed  by  secretaiy  of  the  interior  without  authorization 
of  law,  937. 

AGENT  (see  Pleading  and  Practice). 

AGRICULTURAL  IMPLEMENTS  (see  Chattel  Exemption). 


INDEX,  'J  7 'J 

ALIENATION  (see  Restraint  of  Alienation.  See,  also,  Acknowledg- 
ment; Fraudulent  Sale;  Liabilities  of  Homestead;  Sale  of 
Homestead;  Sale  witu  Homestead  Use  Reserved). 

ALIEN-BORN  APPLICANT  (see  Federal  Homestead). 
ALIMONY  (see  Family  Headship;  Divorce). 
ALLOTMENT  TO  DEBTOR  — 
statutory  provisions,  661-4. 
on  creditor's  ajjplication,  663. 

widow's  application,  663. 
what  to  be  alleged,  663. 
appraisement,  663,  671. 
debtor  paying  excess,  664. 
on  debtor's  application,  665-7. 
when  he  should  apply,  665. 

before  sale,  665. 
debtor  entitled  to  opportunity,  668. 
effect  of  over-claiming,  666. 
loss  of  claim,  667. 
sheriff's  duty  before  sale,  668-673. 
valuation  not  conclusive,  when,  669, 
order,  relative  to  assignment,  670. 
affidavit  of  attorney,  670-1. 
in  attachment  cases.  671. 
contesting  affidavit,  673-5. 
burden  of  proof,  in  contest,  676. 
confirmation,  675-7. 
by  bankrupt  court,  676. 
when  second  allotment  disallowed,  677. 
when  homestead  is  mortgaged  with  other  realty,  714 
ANTECEDENT  DEBTS  — 
prior  to  the  law,  376. 

former  rulings,  376. 
impairment  of  contracts,  377-9. 
judgments  disregarded,  880. 
novation,  381,  383. 
prior  to  marriage,  881. 

purchase,  883.  393. 

occupancy,  383. 

establishment  of  homestead,  384 

filing  deed,  887. 

designation,  893. 

recording,  393. 

dedication,  393. 
attachment  for,  317. 

chattels  governed  by  the  homestead  rule,  as  to,  909. 
ANTE-NUPTIAL  CONTRACT  — 
waiver  of  homestead,  in,  612. 

favored,  613. 

disfavored,  613. 


980  INDEX. 

APPLICATION  FOR  HOMESTEAD  (see  Pleading  and  Practice) 
by  either  spouse,  122. 
after  loss  of  family,  88-98. 
after  sale,  761. 

APPRAISEMENT  — 

when  homestead  allotted  to  debtor,  663, 
duty  of  appraisers,  663. 

in  segregation,  758. 
report  of,  758. 
creditor's  affidavit,  758. 
when  too  late,  641. 
after  schedule  submitted,  853. 
not  by  sheriff's  officers,  854. 
when  null,  855. 
by  appointees  duly  sworn,  853. 
after  inspection  of  the  property,  856, 
of  widow's  allowance,  856. 

object  of,  857. 
of  money,  superfluous,  856. 
of  value  of  land  in  fee,  166. 
confirmation  by  decree,  705,  856. 
officer  must  cause,  780. 

may  be  compelled  to  cause,  857. 
by  viandamus.  863. 

must  set  exempt  goods  apart,  after,  861. 

APPURTENANCES  (see  Use)  — 
shops,  offices,  etc.,  233. 
subsidiary  to  homestead,  233. 
business  houses,  not,  235,  239. 
when  held  exempt,  238,  240. 

ARMS  (see  Chattel  Exemption). 

ASSIGNMENT  (see  Fraudulent  Assignment)  — 
of  purchase-money  note,  347. 

carries  lien  of  vendor,  347. 

when  otherwise,  350. 
of  note,  forfeiting  exemption,  777. 
relative  to  restraint  of  alienation,  417,  416. 
of  homestead,  452. 

to  widow,  in  fee,  when  conclusive,  717. 
general,  not  affecting  exempt  property  retained,  871, 
as  to  promise  of  assignee  to  set  off  chattels,  867, 

discussed,  867,  n. 
to  bankrupt,  void  when,  280. 
ATTACHMENT  OF  CHATTELS  — 
clainiing  at  time  of  seizure,  876,  878. 

by  debtor,  876-8. 

by  other  beneficiaries,  877. 

not  by  debtor  permanently  absent  from  the  state,  877. 


INDEX.  981 

ATTACHMENT  OF  CHATTELS  — continued. 

claimant  debtor  must  own  wlien  the  attachment  is  laid,  878. 

different  from  execution,  G71. 

different  from  execution  as  to  tiaie  to  claim,  880. 

must  claim  before  judgment,  881. 

waiver  by  not  claiming,  883-4. 

decisions  favoring  claim  after  judgment,  884 

garnishee  not  to  claim  for  defendant,  883-4 

relative  to  sale  pendente  lite,  88(5-8. 

ATTACHMENT  OF  HOMESTEAD  — 
lien  a  vested  right,  302-3. 

not  displaced  by  claim,  303,  304. 

iield  subject  to  claim  in  some  decisions,  305-310. 

should  be  recorded,  when,  306. 
of  homestead  after  its  estabUshment,  307-318. 
pleading  exemption,  309,  312,  745-749. 
notice  of  homestead  right,  311. 
effect  of  waiver,  314 
rights  of  wife,  316.  ' 

children,  316. 
for  antecedent  debts,  317. 
creditor  may  redeem  from  mortgage,  847. 
when  wife  a  necessary  party,  683,  743. 
when  homestead  has  been  abandoned,  744 
claiming  exemption,  in  separate  action,  after  attachment,  743. 
when  recording  attachment  lien  is  necessary,  744 
rule  to  dissolve,  744. 
not  a  general  proceeding  in  rem,  745. 

BACHELOR  (see  Family  Headship). 

BANKRUPT  — 

as  to  fiduciary  debt,  337. 

may  claim  homestead,  when,  767. 
BID  — 

effect  of  no  bid,  as  to  exhausting  property,  727. 
BILL  IN  EQUITY  — 

may  be  filed  by  wife,  when,  688-9. 

by  widow,  for  assignment  of  homestead,  695, 
to  protect  her  homestead,  695. 

by  creditor,  as  to  excess  of  Jiomestead,  737. 

by  owner,  to  remove  cloud  on  title,  389,  740. 

by  administrator,  when.  710,  711. 

to  redeem  from  mortgage,  714 

cross-action,  716,  721. 

answer  to,  701. 
BOND  — 

of  curator,  good  against  homestead,  289. 

of  collector,  733. 


982  INDEX, 

BOND  —  continued, 
of  guardian,  723. 
when  widow  must  give,  634-5. 

of  indemnity  to  officer  does  not  relieve  him  from  duty,  780. 
when  given,  781,  861. 

BOOKS  — 

bibles,  prayer  and  hymn  books  exempt,  818. 

school-books,  818. 

libraries  of  professional  men,  818. 

limited  as  to  value,  819, 
presented  by  congress  or  legislature,  819. 
circulating  libraries,  819, 
of  public  offices,  819. 
manuscripts,  819. 

BORROWED  MONEY  (see  Purchase-money)  — 

to  pay  for  homestead,  treated  as  purchase-money,  337. 

lender  has  lien  on  homestead,  337. 
by  trustee  to  purchase  homestead,  338. 
to  extinguish  incumbrance  on  homestead,  338. 
resulting  trust  created,  how,  339. 
traced,  by  an  alien,  to  homestead  investment,  339. 
collectible  of  homestead,  without  express  subrogation,  when,  339. 
as  to,  when  homestead  has  been  abandoned,  339. 
evidence  of  promissory  note,  339,  343. 
gives  right  of  subrogation,  340. 
secured  by  mortgage,  340. 
to  purchase  plantation  supplies,  341. 
distinguished  from  purchase-money,  341,  345. 

illustrated,  341-2. 
does  not  bear  on  homestead,  held,  343. 

does  bear  on  homestead  when  property-debt  is  created,  343. 
debt  for,  not  supported  by  vendor's  lien,  343. 
judgment  for,  a  lien  on  homestead,  344. 
not  on  mortgage  for,  assignable,  witli  subrogation,  347. 

BURDEN  OF  PROOF  (see  Evidence). 

"  BUSINESS  HOMESTEADS  "  — 
a  misnomer,  250. 
what  they  are,  242-255. 
distinguished  from  residence,  243-249. 
not  contiguous,  244. 
partners  denied,  when,  248. 
uses  as  indicia,  251-4. 
as  to,  when  one  has  several  callings,  254» 

CAVEAT  EMPTOR  — 

applies  to  creditor's  judicial  sale,  735. 

as  to  purchaser  at  administrator's  sale,  534 

price  returned  on  failure  of  title,  357-9. 


INDEX.  983 

CERTIFICATE  — 

of  entry,  see  Federal  Homestead. 
final,  see  Federal  Homestead. 

I  CHANGE  OF  HOMESTEADS  (see  ExcnANQE  OP  Homesteads). 

CHARITABLE  PROVISIONS  (see  Policy  of  the  Law)  — 

poverty  not  the  "  mischief  "  for  wiiich  homestead  is  the  remedy,  4. 
for  necessitous  widow  and  cliildren,  460. 
for  necessitous  children,  654-5. 
CHATTEL  EXEMPTION  — 

differentiated  from  homestead,  763, 
poHcy  of  the  law,  764. 
interpretation  of  statutes.  764 

liberal,  764. 

strict,  764-5. 
governing  law,  766  (see  Governing  LawX 
absolute,  768. 
conditional,  768. 

when  debtor  may  sell  or  mortgage,  769. 
claim  by  possessor  of  chattel,  770. 

family  head,  771. 

wife,  773-4. 

resident,  774. 

artisan,  775. 
alienated,  775. 
abandoned,  775. 
exempt  to  widow,  when,  787. 

absolutely,  788. 
household  goods,  791-3. 

necessary,  791. 

convenient,  792. 

ornamental,  793. 
furniture  of  hotels,  793-4 

boarding-houses,  793-4 

restaurants,  793-4 
clothing,  795. 

watches,  jewelry,  etc.,  796. 
tools  of  mechanics,  etc.,  796-801. 

farmers,  797-8. 

photographers,  798-9. 

dentists,  798-9. 

doctors,  797,  811. 

contractors,  799. 

lawyers,  799. 

tradesmen,  800. 
machinery,  801. 
printing  press,  803. 

types,  802. 

material,  802. 


984  INDEX. 

CHATTEL  EXEMPTION  —  continued, 
wagons  and  other  vehicles,  803-6. 
carts,  drays,  etc.,  804. 
dependent  on  avocation,  805,  807. 
teamster's  wagon  and  team,  805,  807, 
domestic  animals,  806-8. 
needed  in  business,  811-813. 
stock  in  trade,  811-813. 

of  merchant,  813-815. 
crops,  815-818. 

whether  exempt  with  homestead,  241. 
provisions,  818. 
books,  818. 
pictures,  819. 
musical  instruments,  830. 
sewing  machines,  etc.,  820. 
fire-arms,  830. 
boats,  820. 
interests,  833. 
wages,  833. 
salaries,  835. 
choses  in  action,  828. 
money  deposited,  834. 
fire  insurance  money,  835. 
life  insurance  money,  886. 
pension  money,  837. 

in  transit,  840, 

accumulations  of,  843. 

CHILDREN'S  HOMESTEAD  — 
nature  of,  643. 

relative  to  the  parental  relation,  61, 
effect  of  father's  death,  643, 
the  mother's  control,  644. 
selection  after  father's  death,  645-8. 
assignment  to  children,  646. 
appraisement,  646. 
setting  apart,  647. 

necessary  parties  to  the  proceeding,  647. 
minors  as  litigants,  648. 
relative  to  indebtedness,  651-4 
order  to  pay  debts,  651. 
inheritance  of  adult  heirs,  653. 
co-tenancy  of  widow  and  children,  652. 
absolute  title,  653. 
necessitous  children,  654. 
insolvent  estates,  as  to  children,  657. 
divorcie  of  parents,  as  to  children's  rights,  73. 
grandchildren,  when  not  entitled,  603. 

when  entitled.  606. 

of  widower,  75. 


INDEX.  985 


CHOSES  IN  ACTION  (see  Wages;  Promissory  Notk)  — 
may  be  exempted,  828. 
agaiust  set-ofT,  829. 

CITIZENSHIP  (see  Residence). 

CLAIM  OF  CHATTEL  EXEMPTION  — 
by  whom,  770-6. 
how,  776-7. 
when,  777-9. 
in  writing,  when,  776. 
of  one  exemption  only,  782. 
some  things  repeatedly  claimed,  783, 
claiming  less  than  the  maximum.  783. 

money  instead  of  other  chattels,  784. 

chattels  instead  of  homestead,  785. 

before  execution  sale,  665,  729-733,  880. 
CLOUD  UPON  TITLE  — 

may  be  created  by  execution  sale  of  homestead,  753. 

removed  by  bill  in  equity,  740. 

prevented  by  injunction,  752, 754. 
COMITY  — 

how  limited,  892.  894. 
when  not  obligatory,  895. 
when  obligatory,  897, 

COMMUNITY  PROPERTY  — 

deeded  by  husband  to  wife,  after  divorce,  70. 

how  in  Texas,  71,  n. 
not  partnership  eflfects,  594. 
husband  cannot  convey,  when,  123. 
survivor  cannot  sell,  when,  596. 
civil-law  rule,  as  to,  603. 

when  segregation  of  homestead  from,  impracticable,  664. 
vests  in  surviving  wife,  when,  708. 
effect  of  divorce  upon,  70. 

CONCEALMENT  (see  Fraudulent  Concealment). 

CONDITIONS  OF  HOMESTEAD  — 
benefit  granted  on,  49,  98,  103,  104. 
assent  of  the  owner  to,  99. 
must  co-exist  when  declaration  is  made,  178. 
embrace  family  headship,  57. 

ownership,  102. 

dedication  usually,  146. 

occupancy,  175. 
CONSTITUTION  (see  Construction)  — 

violated  by  exemption  from  antecedent  debts,  10. 
as  to  homestead,  how  construed,  765. 

effect  of  change  in,  640, 

when  direcLory,  52, 


986  INDEX. 

CONSTITUTION  —  continued. 
as  to  exemption  of  realty,  53. 

personalty,  53. 

intestate  estates,  54. 

denial  of  process,  55,  56. 
securing  married  woman's  homestead  right,  124* 
change  of,  does  not  affect  homestead,  85. 
provision  relative  to  descent  of  homestead,  88,  n. 

as  to  conferring  homestead,  103,  u. 

securing  married  woman's  property  rights,  124* 

enlai-ging  homestead  limits,  148,  238. 

with  homestead  limit  by  statute,  163. 

requiring  dedication,  16-3. 

ordaining  exemption,  223. 

does  not  confer  exemption  absolutely,  where,  230. 

forbids  alienation  of  homestead  without  joint  consent  of  husband 
and  wife,  where,  433. 

CONSTRUCTION  — 

of  homestead  laws,  subject  to  all  the  general  rules,  24. 
not  of  plain  statutes,  24,  238. 
of  words,  25. 
uniform,  27. 
liberal,  28-33. 

when  there  is  something  to  be  construed,  31. 
mischief  and  remedy,  29. 
spirit  of  the  law,  32. 
general  tenor  of  the  statute,  32. 
policy,  33. 

not  by  courts,  25,  28,  34-6. 
laws  in  pari  materia,  34,  47. 
charity  theory,  36,  206,  482. 

not  at  the  expense  of  justice,  37. 
strict,  as  to  statutes,  against  common  right,  38,  40. 

restraining  alienation,  43,  419-422. 

to  prevent  fraud,  42. 
rule  in  Florida,  42. 

as  to  enlargement  of  wife's  property  rights,  44. 
exceptional  decision  in  Michigan,  45-6. 

not  extended  by,  47. 

conflicting,  51. 

of  exemption  in  Louisiana,  39. 
how  in  Vermont,  40. 

Texas,  40. 

South  Carolina,  40. 

New  York,  41. 
to  prevent  fraud,  42. 
not  to  be  extended  by,  47-50. 

on  questionable  grounds,  93-6. 


INDEX.  987 

CONSTRUCTION  —  continued, 
not  to  supply  omissions,  47. 

pointedly  so  lield  in  Idaho,  47,  48,  n. 

exceptional  view  in  Texas,  4S. 
in  Michigan,  49. 
in  one  state,  how  far  to  be  regarded  in  another,  51. 
long  acquiesced  in,  52. 
of  constitutions,  53. 
of  constitutional  provisions  relative  to  realty,  53. 

personalty,  53. 

intestate  estates,  54. 

ordinance,  as  to  interpretation,  55. 

denying  process,  55-6. 
of  chattel  exemption  statutes,  764. 
rule  as  to  liberal  and  strict  construction,  764-6i 

implications,  765. 

rules  of  societies,  765.  ♦ 

state  constitutions,  765. 

exemption  from  taxes,  765. 

CONTRACT  — 

written,  debts  by,  294, 

hen  b3%  295. 

include  the  homestead  statute.  305. 
impaired  by  exemption,  when,  276-281,  767-8. 

costs,  when,  677-680. 

early  decisions,  376-7,  280. 

law  later  than  the  obligation,  276-7,  280. 

in  derogation  of  the  common  law,  276-7,  380, 
unconstitutional,  278. 
includes  the  remedy  as  part  of  the  obligation,  378, 
inhibition  of  impairment  is  upon  states,  279. 

as  to  congress,  279. 
as  to  divesting  rights,  280. 
CONVERSION,  ACTION  FOR  (see  Officer)  — 
must  be  preceded  by  claim,  when,  778. 
by  the  owner  of  property  converted,  781. 
by  the  debtor's  wife  and  children,  860. 
by  a  mortgagee  in  possession,  861. 
when  the  wrongful  act  is  by  deputy  oflScer,  863. 
actual  loss  and  costs  only  recoverable,  when,  863. 
judgment  stands  for  the  property  converted,  864. 
receiver  appointed,  when,  858. 

on  court's  own  motion,  in  Georgia,  when,  859,  n. 

CONVEYANCE  (see  Restraint  of  Alienation  ;  Sale  with  Homestead 
Use  Reserved). 

COSTS  — 

impair  contract,  when,  677-680. 
follow  judgment,  when,  758-761. 


988  INDEX. 

COSTS  — continued. 

in  actions  ex  delicto,  759. 

ex  contractu,  when,  759. 

in  mixed  actions,  when,  760. 
on  junior  judgment,  763. 
i-ecoverable,  when,  863. 

CO-TENANCY  — 

in  general,  as  to  homestead,  131-138. 

of  husband  and  wife,  121,  126,  140-143. 

of  mother  and  children,  143,  652. 

not  in  homestead  but  in  otlier  exempt  property,  134,  136,  137-140. 

in  exempt  real  interests,  706. 

tenants  in  common,  widow  and  cliildren  as,  624. 

COUNTRY  HOMESTEAD  (see  Rural  Homestead). 

CREDITOR  — 
ordinary,  8. 
notice  to,  10,  870. 
holding  lien,  14. 

as  to  the  governing  law,  19,  766. 
how  affected  by  exemption,  123. 
not  affected  by  sale  from  husband  to  wife,  123,  484 
with  claim  prior  to  homestead  act,  276. 

purchase  of  homestead,  282. 

the  filing  of  the  homestead  deed,  287. 

designation  of  homestead,  292. 
on  written  contract,  294. 
holding  dormant  lien,  296. 
attaching  homestead,  302-318,  741-6. 
as  vendor  of  the  homestead,  331-357. 

when  without  lieu,  333. 
as  lender  of  purchase-money,  337,  502. 
as  third  holder  of  purchase-money  note,  346. 
as  to  the  order  of  his  accounts,  350. 
as  mortgagee  after  selling  property  for  homestead,  353. 

relative  to  foreclosure,  714.  872. 
as  to  the  price  when  title  has  failed,  354. 
as  to  his  right  to  execute  excess  of  homestead,  410. 
as  to  sales  with  homestead  use  reserved,  469-490. 

by  solvent  owner,  478. 

by  insolvent  debtor,  481. 

by  administrator,  490,  710. 

pendente  lite,  880. 

in  execution.  486,  738. 

fraudulent,  504,  520,  529,  531,  918. 
creditor  dismterested,  when,  513. 

remotely  interested,  515. 
assignment  of  chattels,  921. 


INDEX.  989 

CEEDITOR  —  continued. 

as  to  sales  to  t!ie  creditor's  prejudice,  517. 
right  to  recover,  531. 

of  liable  property,  523. 
as  to  forfeiture  of  homestead,  534. 
as  to  waiver  of  lioniestead  right,  539-550. 

may  recover  after  abandonment  of  Iiomestead  by  debtor,  558-584. 
relative  to  the  children's  homestead,  651. 
contesting  the  allotment  to  the  debtor,  673. 
not  to  have  his  contract  impaired  bj'  costs  of  court,  677. 
concluded  by  his  own  act,  when,  707. 
as  £o  wages,  823. 

choses  in  action,  828. 

set-off,  829. 

rank  with  other  creditors,  870. 
as  to  attachment  of  chattels,  876-900. 

garnishment,  888-898. 
of  a  partnership,  903. 

may  recover  from  partner  share,  when,  905. 
not  recover,  when,  907. 
as  to  debts  prior  to  chattel  exemption,  900. 

for  price  of  chattels,  910. 
CROPS  — 

on  leased  farm,  113. 

of  cotton,  damages  for  conversion,  113,  n. 

as  means  of  family  support,  341-3. 

growing,  341,  816. 

gathered,  241,  816. 

of  cotton,  under  deed  of  trust,  341,  816. 

not  exempt  because  the  ground  is,  343,  816. 

exempted  liberally,  815.  "" 

for  family  support,  816. 

seed  corn  and  other  seed,  815-6. 

to  one  not  head  of  family,  in  South  Carolina,  816. 

as  to  lien  of  landlord,  816. 

provisions  in  several  states,  817-8. 

DAMAGES  — 

against  officer  for  vt^rongful  levy,  668. 

double,  when,  859. 

treble,  when,  859. 

single,  against  surety,  859,  860. 
awarded  to  tenant  in  common,  double,  when,  861. 
for  wrongful  levy,  859. 

dependent  on  legality  of  exemption  claim,  861. 
whether  recovered  damages  are  exempt,  864. 
DEBT  (see  Liabilities  of  Homesteads)  — 
antecedent,  see  Antecedent  Debts. 
exempted  from,  is  ordinary,  8-10. 

after  notice  to  creditors,  10-12. 


990,  INDEX. 

DEBT  — continued. 

to  state,  how  affectod  by  exemption,  12-14. 

secured  by  lien,  not  protected,  14-18. 

foreign,  228,  283. 

domestic,  282. 

ordinary,  8,  16,  284. 

of  the  property  itself,  349,  350. 

for  homestead  purchase,  331-857. 

for  improvements,  361-369. 

accounts  marshaled,  350-2. 

DECLARATION  — 

on  one  dwelling  only,  147. 
how  made,  160. 
by  wife,  64,  162. 
form  of,  163. 
effect  of,  163. 
of  occupancy,  164-5,  176. 
on  wife's  separate  property,  164 
joint,  164-5. 
how  proved,  165. 
of  value,  165,  211. 
preventive  of  forced  sale,  173. 
as  to  existing  liens,  174. 
as  a  condition  of  homestead,  176. 
when  directory,  178. 
•  evidence  of,  559,  564. 
of  husband  and  wife,  as  to  ownership  of  homestead,  749. 
transcript  of,  in  evidence,  749. 
by  husband,  when  inadmissible,  750. 
by  wife,  admissible  against  herself,  750. 
by  widow,  193. 
by  the  son  of  a  widow,  752. 

DECREE  (see  Judgment). 

DEED  OF  HOMESTEAD  — 
when  null,  475. 

separate  deeds  by  husband  and  wife,  485. 
from  husband  to  wife  not  fraudulent,  when,  289. 

fraudulent,  when,  348. 
in  escrow,  556. 
by  quitclaim,  579,  607. 

DEED  OF  TRUST  — 
in  general,  375-7. 

to  secure  purchase-money  note,  348L 
by  husband  to  wife,  526. 

alone,  559. 
by  debtor,  527. 
suit  upon,  750. 


INDEX.  991 

DEED  OF  TRUST  — coutinued 
by  widow,  G33. 

effect  on  widow's  homestead  right,  633. 
by  husband  and  wife  jointly,  647. 

DEDICATION  — 

by  husband,  bestows  rights  on  his  wife  and  children,  60. 
requires  exclusive  possessory  right,  131. 
not  of  property  held  in  co-tenancy,  131-4 
limited  to  one  i)roperty,  wlien,  146. 

effect  of  building  a  second  house,  147-Sb 
as  to  single  tract  of  land,  149. 

contiguity  of  tracts,  149,  150. 

quantitative  limit,  149,  n. 
as  to  two  or  more  tracts,  152-4. 
no  formal  declaration  required  in  Texas,  154. 

in  South  Carolina,  157. 
of  urban  homestead  by  platting  and  according,  154-8. 

requii-ed  in  Iowa,  154-8. 
in  Georgia,  157. 

directory,  156. 

may  be  after  levy,  156. 
by  officer,  156. 
as  to  rural  homestead  brought  within  town  lines,  155-7. 
as  to  form  generally  following  government  surveys,  158-160. 

in  the  older  states,  159. 

should  not  be  fantastic,  159. 
method  of,  160-3. 

by  declaring  and  recording,  160,  169-74 
in  Homestead  Book,  161. 
like  a  grant,  161. 

marking  the  bounds,  161,  163. 

filing  certificate,  163. 

recording  intention,  163. 

occupancy,  162. 

acknowledgment,  163. 
held  onerous  and  optional,  in  Louisiana,  168. 

DEFENSES  (see  Pleading  and  Practice  ;  Garnishment  in  Foreign  Ju- 
risdiction). 

DEFINITION  — 

of  homestead,  1,  275. 

widoiv^s  homestead,  Qll. 
homestead  estate,  361. 
householder,  75,  80,  125,  237. 
citizen,  62. 
family,  58,  81. 
calling,  246. 
business,  246. 
owner,  83. 


992  INDEX. 

DEFINITION  —  continued, 
of  mmied,  109. 

occupied,  109,  179,  202-4. 

tax  sale,  328. 

improvements,   361. 

laborer,  824. 

lot,  156,  214. 

purchase,  106. 

"  dependent  for  support,"  59. 

"  householder  and  head  of  a  family,"  75,  BOl 

"head  of  household,"  80. 

"  used  or  kept,"  191. 

"  used  to  carry  on  business,"  812. 

tool,  796. 

hearse,  804. 
DESERTION  (see  Family  Headship)  — 
by  wife,  66. 
by  husband,  773. 
DEVISE  (see  Restraint  of  Testamentary  Disposition). 

DIVORCE  (see  Family  Headship)  — 
in  general,  as  to  homestead,  67. 
effect  on  homestead  right,  68-71. 
forfeiting  the  right,  72. 
how  affecting  community  property,  70. 

mortgage,  73. 

children's  rights,  73. 
claim  of  homestead  by  a  divorced  person,  101. 

DOMESTIC  ANIMALS - 

when  absolutely  exempt,  806. 

when  selection  necessary,  806.  * 

selection  of,  as  to  officer's  duty  before  execution,  807. 

when  exemption  conditional,  807. 

employed  in  (h'ffereut  callings,  807. 

kept  for  hire,  807. 

harness  for  horses,  808. 

selection  of,  binding  on  debtor,  808. 

used  for  pleasure  or  convenience,  808. 

exempt  irrespective  of  their  uses,  809. 

exchanged,  to  defeat  execution,  809. 

bought,  to  sustain  claim  of  exemption,  811. 

owned  exclusively,  809,  811. 

exempt  in  pairs  may  be  singly  claimed,  810. 

DOMICILE  — 

insufficient  without  actual  residence,  774. 
of  wife  and  children,  61. 

follows  that  of  her  husband,  70. 
of  the  family  head  when  acqun-ing  homestead,  63. 
continues  till  new  one  made,  561,  564. 


INDEX.  993 

DONATION  — 

of  homestead,  with  right  of  occupancy  reserved,  738. 
DORMANT  LIENS  — 

of  general  judgments,  in  Virginia,  15. 

of  judgments,  298. 

effect  of  docketing,  297. 

suspension  of  process,  296. 

relative  to  administrator's  sale,  297. 
reversion,  300. 
waste,  300. 
LOWER  RELATIVE  TO  HOMESTEAD  — 

may  be  waived,  544. 

may  not  affect  homestead,  545. 

compatible  witli  liomestead.  when,  614-618. 

incompatible  witli  homestead,  when,  618-625. 

conveyance  of,  effect  on  homestead,  616. 

DUAL  HOMESTEADS  (see  "Business  Homesteads"). 
EARNINGS  — 

of  debtor,  when  not  wages,  823. 

of  clerks,  book-keepers,  etc.,  835. 

as  to  whether  contract  is  test  of,  825. 

salaries,  826. 

of  a  photographer,  827. 

for  family  maintenance,  837. 
EJECTMENT  — 

when  purchase-money  unpaid,  107,  355. 

by  the  purchaser  at  a  sale  in  suit  for  purchase-money,  717. 

of  private  purchaser  by  purchaser  at  judicial  sale,  718. 

by  widow,  627. 

bj'  mortgagee,  718, 

suit,  in  which  the  wife  is  a  party  defendant,  685. 
ELECTION  — 

by  widow,  between  homestead  and  dower,  when,  618. 
distributive  share,  620. 

by  debtor,  as  to  remedies  for  wrongful  levy,  857. 

by  wage-earner  of  remedy  for  wrongful  garnishment,  895. 
EQUITABLE  ESTATE  (see  Ownership). 

EQUITY  (see  Bill  IS  Equity)  — 

of  redemption,  119, 

widow's  homestead  right  in,  624. 

mcxims,  528. 

when  proceeding  must  be  in  equity,  and  not  by  execution,  147. 
ESTATE  OF  HOMESTEAD  — 

likened  to  dower,  261-3. 

not  strictly  an  estate,  235-7. 

a  privilege,  268. 

negative,  269. 
63 


994  INDEX. 

ESTATE  OP  HOMESTEAD  —  continued, 
trust,  270. 
of  widow,  271. 

not  alienable,  272. 

abandonable,  273. 
relative  to  exemption,  272. 
ESTOPPEL  — 

by  sole  deed,  392-5. 

from  claiming,  533. 

of  wife,  649. 

of  husband  but  not  of  wife,  693. 

not  when  mortgage  is  void,  719. 

by  plea  of  homestead,  749,  751. 

not  by  debtor's  silence,  when,  866. 

disclaimer,  when,  866. 
EVIDENCE  — 

by  written  contract,  294 
aliunde,  675. 
®   of  declaration  of  homestead,  559.  ^ 

by  transcript,  749. 
of  facts  to  show  exemption,  864. 
burden  of  proof  on  claimant,  865. 

resident  claiming  as  such,  901. 

declarant.  750. 

contesting  creditor,  674,  749. 

claimant,  700,  901. 

purchaser,  289,  751. 

when  homestead  sold  by  probate  order,  713. 

when  defendant  claims  on  foreclosure,  718. 

that  property  is  exeinpt,  879. 

that  other  property  than  homestead  exists,  737. 

that  homestead  exceeds  the  limit,  879. 
no  pi-esumption  that  homestead  is  excessive,  700. 

there  is  other  property,  737. 
presumption  favors  officer's  return,  703. 

of  husband  and  wife,  as  to  ownership,  749.  • 

when  husband's  declarations  inadmissible,  750. 
when  wife  may  prove  her  right  from  former  husband,  751« 

husband  is  a  competent  witness,  751. 
of  attorney  as  to  notice  to  purchaser,  751. 

effect  of,  as  to  consideration  of  promissory  note,  753.  , 

circumstantial,  as  to  intent  to  occupy  homestead,  201.  j 

EXCESS  OF  HOMESTEADS—  ' 

beyond  limits  of  value  and  quantity,  405-410.  *« 

first  exhausted  when  all  liable,  410-415.  jj 

EXCHANGE  OF  HOMESTEADS—  '• 

new  homestead,  as  to  old  debts,  285.  • 

not  liable,  unless  excessive,  385.  , 

filing  of  deed  of,  290.  ; 

bought  with  proceeds  of  exempt  property,  290-1,  438-443, 


i 


INDEX.  995 

EXECUTION  — 

denial  of  process,  55-6,  747. 

platting  to  precede,  when,  156-7. 

selection  before,  163. 

of  fee  with  homestead  use  reserved,  486. 

delayed  during  occupancy,  296,  493. 

after  exhaustion  of  other  property,  410-5,  754. 

of  the  excess  of  homestead,  525. 

how  differing  from  attachment  sale,  671,  880L 

preliminary  duties  of  sheriff,  668-673. 

after  wrongful  levy,  668,  859. 

as  to  allotment  to  debtor,  see  Allotment. 

schedule,  see  Schedule  of  Debtor's  Propeett. 

appraisement,  see  Appraisement. 

segregation,  see  Segregation. 

insolvency  proceedings,  708-9. 
ground  for  action  of  trespass,  when,  756. 
on  debtor's  failure  to  claim  exemption,  736,  729,  860. 
effect  of  lack  of  bid,  727. 
void,  when,  731. 

cannot  defeat  homestead  duly  claimed,  738. 
as  to  occupancy,  738-741. 
exemption  from,  does  not  affect  title,  739. 
of  husband's  separate  interest,  739. 

when  title  is  in  either  husband  or  wife,  739. 
after  advertisement  showing  what  title  to  be  offered,  740, 
to  pay  unprivileged  debts,  740. 
restrained  by  injunction,  752-5. 
may  cast  cloud  upon  title,  753. 
of  abandoned  homestead,  743. 
set  aside  on  motion,  747. 
confirmed  by  court,  761. 
alias,  783. 
proceeds  of,  as  to  liability  of  sheriff,  758L 

paid  to  debtor,  when,  780. 
writ  of,  858. 

in  actions  for  tort,  395,  913-4. 
by  wife,  915. 

for  penalties,  914 

on  fiduciary  debt,  336. 

for  purchase-money,  334-5,  738L 

for  improvements,  363. 

taxes,  395,  338. 

against  partnerships,  903-9. 
when  cause  for  action  of  damages,  859-863L 

EXEMPTION  (see  Chattel  Exemption)  — 
what  realty  is  exempt,  5. 

home  property,  ordinarily  liable,  is  protected,  5. 
habitable  propei  ty,  6. 


Ofjf)  INDEX. 

EXEMPTION  —  continued 

as  to  quantity,  see  Quantitative  Limit. 

value,  see  Monetary  Limit. 
of  partnership  assets,  when,  144.     See  Partnership  Personalty. 
optional,  168. 

inoperative  against  a  duly  executed  recorded  mortgage,  171-3. 
of  realty  and  personalty  together,  229-31. 

EXTENSION  OF  CORPOEATE  BOUNDS  (see  Quantitative  Limit). 

FAMILY  (see  Family  Headship.     See,  also,  Children's   Homestead; 
Divorce;    Heirs;   Husband  and   Wife;   Occupancy;   Pleading 
AND  Practice;  Surviving  Spouse;  Widow;  Wife)  — 
how  constituted,  7,  57. 
its  parental  and  conjugal  relations,  58. 
domiciliated  with  the  head  of  family,  61. 
parental  relation  cherished  by  the  state,  61. 
adopted  children,  62. 
home  of  parents  and  children  protected,  64. 

of  those  not  bound  by  natural  ties,  64.  ^ 

after  desertion  by  the  wife,  67. 
FAMILY  HEADSHIP  (see  Family)  — 
a  condition  of  homestead,  57,  83. 

not  universal,  57,  83. 
representing  members  of  family,  57,  83. 
householder's  obligation  to  support  dependents,  58,  83. 
not  domestics,  58. 

as  to  relation  by  contract,  59. 

as  to  orphans  charitably  cared  for,  59. 
moral  duty  to  support  dependents,  59. 
legal  duty  to  support  dependents,  60. 
of  the  husband,  60. 
of  the  owner  and  occupant,  60. 
effect  of  dedication  by  the  family  head,  60. 
duty  of  wife  and  children,  61. 
when  living  temporarily  alone,  61. 
members  of  family,  as  to  acts  of  their  head,  61. 

difference  between  married  and  single  heads  of  families,  as  to  aliena- 
tion, 63. 
"  head  of  family  "  and  "  married  man  "  distinguished,  63. 
of  husband  and  wife,  together,  63. 

either  may  claim  homestead,  64 

each  cannot,  65. 
of  wife,  when,  64,  65. 
of  husband  and  father,  85. 

when  homestead  owned  by  a  subordinate  member  of  the  family,  66. 
when  the  wife  has  deserted,  66,  67. 
after  divorce,  67,  84,  87. 

as  to  the  homestead  property,  68. 

as  to  selecting  a  new  homestead,  69. 


INDEX.  99T 

FAMILY  HEADSHIP  — continued. 

after  divorce,  as  to  division  of  property,  69,  70. 

as  to  community  property,  70,  71. 

as  to  tenants  by  entireties,  71.  • 

as  to  forfeiture  of  homestead  right,  72. 

as  to  mortgage,  73. 

as  to  custody  of  the  children,  73,  74* 

as  to  dower,  73,  n. 

as  to  alimony,  74 
of  widower,  75. 

with  cliildren,  75. 

without  children,  75,  83,  84 

after  loss  of  cliildren,  86. 
of  widow,  acquiring  original  homestead,  75,  76. 

dependent  upon  having  children,  when,  77. 

as  to  adopted  children,  77. 

as  to  leasehold,  77. 
of  stepmother,  77-8. 

of  childless  widower  or  widow  supporting  natural  dependents,  78. 
of  husband  of  a  second  wife,  78. 
of  debtor,  acquired  pending  execution,  78. 
of  unmarried  persons,  79. 

recognized,  when,  79,  80. 

denied,  when,  79,  81. 

not  restrained  in  alienation,  81. 

as  to  descent  of  homestead,  81. 
of  householder,  80,  85. 

without  family,  97. 
of  more  than  one  family  residing  together,  83. 
as  to  acquiring  and  retaining,  different.  84 
as  to  loss  of  family,  83^ 
upon  change  of  state  constitution,  85. 
as  to  claiming,  after  loss  of  family,  88. 

as  survivor,  91-3. 

right  not  divested,  when,  94 

relative  to  rights  of  creditors,  95-6. 

weight  of  authority  against  it,  98. 

reason  against  it,  99-101. 

FEDERAL  HOMESTEADS  — 

compared  with  state  homesteads,  934. 

definition,  934 

policy,  934. 

principles,  935. 

exemption,  935. 

beneficiaries,  936-939. 

qualifications,  936. 

married  persons,  937. 

widows  and  heirs,  937. 

foreign-born  applicants,  928. 

not  a  husband,  living  on  his  wife's  homestead.  148. 


998  INDEX. 

FEDERAL  HOMESTEADS  —  continued, 
entry  —  what  land  open,  929-931. 

what  quantity,  929. 

exception  of  mineral  lands,  929. 
of  occupied  lands,  930. 

of  adjoining  farm,  931. 
application  and  settlement,  932-934, 

affidavit,  932. 

settlement  actual,  982. 

valid  possession,  933. 

commutation,  933. 

abandonment,  934 
soldier's  and  sailor's  homestead,  934-936. 

how  secured,  934. 

what  service,  935. 

soldier's  children,  935. 

children's  rights  held  vendible,  935,  936b 
executive  acts,  936-939. 

of  register  and  receiver,  936. 

of  secretary  of  the  interior,  936,  937. 

of  commissioner,  937. 

certificate,  937. 

segregation,  938. 

cancellation  of  entry,  939. 
judicial  action,  940-942. 

remedies,  940. 

on  questions  of  fraud,  941. 
settler's  rights  relative  to  railroad  grants,  942-948L 

claims  in  conflict,  942. 

vested  rights,  943. 

grant  to  state  for  railroad  construction,  944 

right  of  way,  944. 

government  grant  of  right  of  way,  946. 
alienation  inhibited,  946-950. 

sale  in  future,  946, 

against  public  policy,  947. 
in  absence  of  inhibition,  949. 
incumbrances,  950-952. 

inhibited,  950. 

statute  construed  as  to,  950. 

policy  as  to,  951. 

upon  improvements,  953. 
title,  953. 

possessory,  953. 

equitable,  953. 

legal,  by  patent,  953. 
FIDUCIARY  DEBT  — 

not  affected  by  exemption,  326. 
of  defaulting  tax  collector,  328. 

attorney  at  law,  326. 


INDEX.  999 


FIDUCIARY  DEBT  — continued, 
of  officer  of  court,  326. 
any  public  officer,  320. 
of  surety,  326. 
agent,  327. 
guardian,  327. 
debtor  in  bankruptcy,  327. 

FILING  DEED  OF  HOMESTEAD  — 
unavailing  after  judgment,  288. 

execution  issued,  288. 
of  homestead  taken  in  exchange  for  another  one,  290. 

FORECLOSURE  (see  Mortqaqe). 

FORFEITURE  (see  Laches)  — 

by  failure  to  claim,  726,  729,  866. 
effect  upon  creditors,  534. 

FORM  OF  HOMESTEAD  — 
as  to  irregular  shape,  158-60. 

should  be  in  accord  with  government  surveys,  158. 
how,  in  the  older  states,  159. 

FRAUD  — 

when  acquiring  homestead,  129,  499. 

with  another's  money,  502. 

by  circuity,  503. 

by  exchanging  goods  not  paid  for,  504,  534 

by  wrongful  selection  from  liable  property,  508. 

at  another's  expense,  512. 
when  conveying,  513. 
creditors  disinterested,  when,  513,  525,  710,  711. 

with  interest  remote,  515. 
prejudiced,  517. 
liability  to  creditois.  521. 
selling  liable  property,  523. 
liens,  526. 

marriage  to  defeat  creditors,  528, 
transfer  to  wife,  529,  533. 

not  fraudulent,  when,  289. 

fraudulent,  when,  348. 

set  aside,  effect  of,  531-4 
as  to  proceeds  when  sale  has  been  set  aside,  289. 
proceeds  of  homestead  given  by  husband  to  wife,  713. 
in  purchasing.  127,  128. 
withholding  property  in  disclosure,  130. 

non-exempt  goods,  253. 

FRAUDULENT  ACQUISITION  — 

by  exchanging  goods  not  paid  for,  127-8L 


1000  INDEX. 

FRAUDULENT  ASSIGNMENT  — 
without  reservation,  921. 
by  debtor  in  trust  for  Jiimself,  933. 
as  to  subsequent  claiming  of  exemption,  923. 

FRAUDULENT  CONCEALMENT  — 
by  withholding  from  schedule,  916. 

preference  of  creditors,  917. 
when  not  forfeiting  exemption,  917. 
not  affecting  family  rights,  918. 

FRAUDULENT  SALE  — 

not,  though  proceeds  used  for  general  purposes,  537. 
not  affecting  creditors,  918,  919. 
as  to  perjury,  918. 
effect  upon  vendee,  919. 
debtor's  claim,  920. 
when  creditors  not  provided  for,  710. 

GARNISHEE — 

■  disclosure  of,  896-900. 
GARNISHMENT  IN  FOREIGN  JURISDICTION  — 
restrained,  888. 
purchase  of  claim  for,  889. 
damages  recoverable  for,  889. 
criminal  prosecution  for,  889. 
inhibition  constitutional,  890. 
taking  equivalent  to  sending  claim  for,  890. 

by  creditor  who  changes  residence,  allowed,  891. 
debtor's  remedy,  895. 
garnishee's  disclosure,  896. 

as  to  debtor's  defense,  896. 
when  garnishee  must  pay,  897. 
railroad  company  as  garnishee,  898, 
disclosure  by,  898-900. 

GOVERNING  LAW  — 

as  to  exemption  right,  19. 
remedy,  21. 

repeal  and  amendment,  21. 

limits  of  homestead,  237-9. 

debt,  837. 

sureties,  227-8. 

inheritance,  629. 
in  chattel  exemption,  766-8. 

as  to  contract,  is  that-existing  when  contract  made,  767. 
as  to  remedy,  is  that  existing  when  remedy  enforced,  767. 
as  to  impairment  of  contract,  767-8. 

HEIRS - 

as  to  partition,  136. 

granting  right  of  way,  135. 


INDEX.  1001 

HEIRS  — continued. 

<Jf  wife,  124. 

adult,  yet  dependent,  when  beneficiaricB,  605-6, 

cannot  compel  foreclosure  of  mort^jage,  when,  714 
HOTEL  (see  Use). 

HOUSEHOLDER  (see  Family  Headship). 

HOUSEHOLD  GOODS— 

necessary  house  and  kitchen  furniture  exempt,  791. 

minutely  specified  in  some  states,  791,  792. 

when  not  absolutely  necessary,  792. 

when  mei-ely  convenient,  793. 

ornamental,  793. 

of  a  boarding-house,  held  exempt  when,  793. 

of  a  restaurant,  794. 

of  a  hotel,  794. 

of  a  saloon,  795. 

when  the  only  limitation  is  monetary,  794 

HUSBAND  AND  WIFE  (see  Family  Headship)— 
interests  mutual,  125, 

neither  can  have  homestead  right  adverse  to  the  other.  120. 
equitable  interest  may  be  in  husband  while  legal  in  wife,  121. 

or  vice  versa,  121, 
husband's  declaration  creating  joint  title,  131. 
application  for  homestead  by  either,  123. 

cannot  convey  wife's  title,  123. 
co-tenancy  of,  140-3. 
sale  by,  373-5, 
trust  deed  by,  375-7, 
mortgage  by,  377-383. 
sale  by  husband  alone,  inhibited,  383-7, 
sales  subsequently  validated,  387-389. 
wife's  rights  relative  to  sale,  389-393. 
estoppel  by  sole  deed,  392-395. 
conveyance  by  husband  to  wife,  395-8. 

as  to  creditors,  123. 

as  to  community  property,  133. 
incumbrance  inhibited,  398-401. 
interests  of  non-owning  beneficiaries,  40-3. 
conveyance  to  pay  privileged  debts,  403-4. 

IMPLICATION  OF  STATUTES  (see  Construction). 

IMPROVEMENTS,  361-369. 
defined,  361. 
lien  for,  361. 

if  requisites  observed,  362-364. 

not  lost  by  officer's  neglect,  365. 
no  lien  in  equity,  362. 
debt  enforceable  under  judgment,  363. 


1002  INDEX. 

IMPROVEMENTS  —  continued. 

fixtures,  363. 

rank  of  liens,  364. 

for  material,  361,  365. 
labor,  361,  365. 

judgment  for,  368. 

municipal,  369. 
INCUMBRANCE  (see  Mortgage)  — 

relative  to  carving  homestead  upon  land,  103. 

whether  homestead  right  is  an,  318. 

when  homestead  is  not  an,  103,  724. 

owner  none  on  his  own  property,  319. 

wife  may  have,  on  husband's  property,  as  to  creditors,  320. 

children  none,  as  to  their  father's  property,  321. 

on  homestead,  inhibited,  398-401. 

equal  to  the  property  incumbered,  137. 

quasi-estate  is,  when,  724. 
INDIVISIBLE  PROPERTY  (see  Excess  of  Homestead)  — 

exceeding  homestead  limits,  223-4. 
exempt  proceeds  of,  reserved,  237. 

INHERITED  HOMESTEAD  — 
nature  of,  204-5. 

compared  with  purchased  one,  205,  286. 
what  law  governs  inheritance,  629. 

INJUNCTION  — 

preceeded  by  platting,  when,  154,  158. 

to  restrain  claiming  homestead,  not  allowed,  740. 

attachment,  denied,  743. 

creditor  from  garnishing  in  foreign  jurisdiction,  888-892. 
to  prevent  cloud  on  title,  753,  754. 
against  sale,  when  property  is  exempt,  752,  755. 

on  community  debt,  753. 

by  illegal  execution,  753. 

of  excess  above  homestead,  754 

by  trustee,  754. 

of  exempt  chattels,  857. 
by  purchaser,  denied  when,  754. 
temporary,  755. 

INSOLVENT  — 

cannot  exchange  goods  for  homestead,  531. 
buying  in  his  wife's  name,  527. 
estates,  descent  of,  657. 
partition  of,  658-660. 
sale  of  homestead  in,  when  void,  708-9. 
when  purchaser  gets  title,  709. 
INSURANCE  — 

of  homestead,  359. 

indemnity  to  widow  after  loss  by  fire,  608. 


INDEX.  1003 

INSURANCE  —  continued. 

when  proceeds  of  policy  administrable,  609. 

not  administrable,  (509. 

general  rule,  as  to,  609. 
when  exceptionable,  610. 
indemnity,  whether  money  exempt,  835. 
money,  from  life  policy,  836. 

INTENTION  TO  OCCUPY  (see  Occupancy) — 
without  act,  is  nugatory,  189,  196. 

but  not  always  so  held,  197. 
when  realized  subsequently,  193. 
rule,  as  to,  194. 
with  slight  acts,  194 

accompanied  by  preparation,  190,  194,  197-9,  200,  203. 
circumstantial  evidence  of,  201. 
will  not  prevent  a  lien  from  attaching,  193. 
when  laud  purchased  for  homestead  purposes,  194,  200. 

and  building  begun,  195. 
with  homestead  recorded  and  building  begun,  195. 

lot  inclosed,  197. 
not  retroacted  upon  by  subsequent  occupancy,  as  to  lien,  198. 
with  present  action,  198-9. 
to  re-occupy,  204. 
INTEREST  — 

must  be  assignable,  when,  124.  ' . ,    . 

of  husband  and  wife,  125. 

of  minor,  while  his  father  lives,  271. 

of  non-owning  beneficiaries,  401-3. 

undivided,  134-13a 

INTERPRETATION  (see  Construction). 
INTESTACY  — 

as  to  homestead,  447. 

INVENTORY  (see  Schedule). 
JOINT  TENANCY  (see  Co-tenancy). 

JUDGMENT  (see  Pleading  and  Practice)  — 
confessed,  295. 

relative  to  the  order  of  payments,  350-2. 
when  not  res  judicata,  701. 
when  barring  subsequent  litigation,  747. 
not  a  lien  on  homestead,  when,  732. 
confirming  the  report  of  appraisers,  705. 
for  alimony,  a  lien  on  homestead,  when,  745. 

not  a  lien  when  defendant  has  custody  of  the  children,  745. 
for  damages,  758,  761. 

as  to  liability  of  property,  held  res  judicata,  868. 
in  one  state,  to  be  credited  in  others,  894-5. 

JUDICIAL  SALE  (see  Dormant  Liens;  Pleading  and  Practice;  Lia- 
bilities OF  Homesteads). 


1004  INDEX. 

JURISDICTION  — 

of  probate  court,  as  to  homestead,  626-8. 
taken  from  courts  by  statute,  747. 

JURY  — 

try  homestead  questions  of  fact  on  issue  joined,  743. 
find  facts  on  creditor's  contest  of  chattel  claim,  878-9. 

LABORER  (see  Wages)  — 
is  a  manual  worker,  824. 

LACHES  — 

by  which  exemption  is  forfeited,  726,  729,  866. 

not  attributable  to  judgment  creditor  with  lien,  when,  737. 
LAW  OF  RELATION  (see  Retroaction). 

LEASE  — 

governed  by  same  rules  as  other  titles,  how  far,  113. 

as  to  crops.  113,  n. 

may  require  joinder  of  husband  and  wife  to  transfer,  114,  433. 

of  homestead,  right  of  widow,  115, 

may  be  of  part  of  the  homestead,  115. 

of  homestead,  is  alienation,  when,  433. 

for  a  long  term,  433,  434. 

without  disturbing  occupancy,  435. 

continuously,  forfeits  exemption,  741. 

LEGAL  POSSESSION  — 

differentiated  from  homestead  occupancy,  205. 
confounded  with  homestead  occupancy,  206. 

LIABILITIES  OF  HOMESTEADS  — 
for  debts  prior  to  the  law,  276. 

purchase,  282. 

occupancy,  282. 

filing  deed,  287. 

designation,  292, 

by  written  contract,  294. 
for  dormant  liens,  296. 
for  attachment  liens,  302. 
for  tort,  322. 
for  fiduciary  debts,  326. 
for  taxes,  327. 

for  purchase-money,  see  Purchase-money. 
for  improvements,  see  Improvements. 

LIEN  (see  Dormant  Liens)  — 
on  homestead,  liability  for,  14. 
conventional,  16. 
by  judgment  for  tort,  295. 
for  tax,  295. 
for  assessment,  295. 
for  purchase-money,  333. 
a  vested  right,  101. 
does  not  affect  ownership,  126. 


INDEX. 

LIEN  —  continued. 

on  homestead  prescribed,  285-6. 

equitable,  295,  332. 

dormant,  296-303. 

for  improvements,  361-5. 

of  mechanics,  375. 

dependent  on  wife's  signature,  when,  375. 

how  affected  by  taking  otiier  security,  553. 

marshaled  with  other  liens,  557,  720-3. 
in  foreclosure,  720. 

not  by  judgment  for  ordinary  debt,  733. 

not  created  on  land  by  homestead  dedication,  724. 

covered  by  general  lien,  when,  728. 
on  land  not  dislodged  by  homestead  dedication,  455. 

LIFE  ESTATE  (see  Surviving  Spouse  ;  Widow's  Homestead). 

LIMITATION  (see  Monetary  Limit  ;  Quantitative  Limit)  — 
of  value  and  quantity,  208-210. 
to  one  home,  125,  146,  252. 

family  in  one  house,  148. 
husband  and  wife  not  each  entitled  to  separate  home,  148. 
effect  of  increased  value  on  quantity,  209. 
as  to  rural  homesteads  in  Texas,  221. 

LOT  — 

defined,  156,  214 

according  to  city  plan,  213, 

when  composed  of  two  half-lots,  215. 

MACHINERY  — 

threshing-machine  not  exempt,  when,  801. 

illustration  from  California,  801, 
used  by  the  owner  on  his  own  farm,  exempt,  SOL 
treated  as  exempt  tools,  801. 

in  Michigan,  801. 
in  part,  exempt  when,  801. 

in  Illinois,  801. 
steam-engine  exempt,  when,  801. 
mills  and  large  machinery,  801. 
of  corporations,  802. 
exempt  within  money  limit,  when,  803. 

MANDAMUS— 

to  compel  appraisement,  863,  884. 
relative  to  waiver,  868. 

MARRIAGE  (seeFAmLY;  Family  Headship;  Husband  and  WifeX 

MECHANIC'S  LIEN  (see  Liens). 

MERCHANT'S  STOCK  IN  TRADE  (see  Stock  in  Trade). 


1005 


1006  INDEX. 

MIXED  PROPERTY  — 

realty  and  personalty  exempted  together,  130, 

in  Indiana,  229. 

selected  by  the  owner,  229. 

surplus  after  sale,  230. 

in  Georgia,  230. 

in  Maryland,  231, 

in  Pennsj'lvania,  231. 
MONETARY  LIMIT,  210-229. 

to  what  amounts,  in  different  states,  210-216. 

tabulated  by  states,  231. 

estimated  in  declaration,  211. 

relative  to  subsequent  increase  in  value  of  homestead,  21&-218k 

relative  to  the  flexibility  of  values,  219. 

on  change  of  constitution,  228,  249. 

on  repeal  of  statute,  229. 

MONEY  — 

deposited,  may  be  exempted,  834 
as  fire  insurance  indemnity,  835. 
from  life  insurance,  836. 
or  realty,  in  lieu  of  homestead,  634-6. 

MORTGAGE  — 

not  affected  by  exemption,  101. 

redemption,  119. 

by  husband  alone,  when  homestead  not  recorded,  171. 

to  secure  antecedent  debt,  284. 
purchase-money,  352. 
exceptional  case  as  to  mortgage  to  secure  purchase-money,  353. 
assigned,  3-^7. 
unrecorded,  354. 
by  husband  and  wife,  377-383. 

may  be  foreclosed,  714. 
necessity  of  wife's  joinder,  377. 
husband  and  wife  sign  together,  380. 
parties  to  foreclosure,  380. 

inhibition  of  mortgage  of  homestead,  881.  ' 

not  validated  by  death  of  wife,  388. 
by  widow,  633. 
by  administrator,  633. 
when  allotment  necessary,  714. 
foreclosed  by  senior  mortgagee,  715. 
sale,  after  exhausting  property  other  than  homestead,  715-717. 

when  no  bid  for  the  other  property,  727. 
proof  that  other  property  exists,  727. 
intervention  by  junior  mortgagee,  718. 
lien,  marshaled  with  other  liens,  on  foreclosure,  720. 
as  to  the  equity  rule,  723-6. 

homestead  claimed  after  issue  joined  in  mortgage  foreclosure,  557. 
relative  to  prior  assignment  of  homestead  to  widow,  649. 


INDEX.  1007 


NON-RESIDENT  (eee  Residence). 

NOTICE  — 

to  creditors,  10,  311. 

essential  iu  all  tiie  states,  11. 

relative  to  exclusive  possessory  right,  13^ 

by  occupancy,  133,  16'J. 

recording,  161. 

filing  declaration,  161. 
certificate,  162. 
description,  162. 
in  contemplation  of  absence,  163-4 
of  intention,  1G4. 
importance  of,  167. 
to  show  acceptance  of  conditions,  168. 
by  passage  of  homestead  law,  169. 
how  affecting  second  purchaser,  373. 
precedes  waiver,  870. 

of  opposition  to  exemption  allotment.  871. 
by  debtor  to  judgment  creditor,  of  his  claim,  871. 

OCCUPANCY  (see  Intention  to  Occupy  ;  Use)  — 
by  family,  6. 

a  condition  of  homestead,  175. 
contemplated,  176,  189-199. 
for  what  time,  177. 
actual,  177,  179-182,  186.  189,  275. 
essential,  178. 
without  declaration,  179. 
relative  to  declaration,  199,  201, 
re-occupancy,  203-4. 
legal  possession  as,  205-0. 
of  two  homes  alternately,  250. 
right  of,  called  "estate,"  263. 
by  widow,  621. 
when  inferred,  741. 

OFFICER  — 

to  plat  urban  homestead  before  sale,  156-7. 
must  ascertain  value  of  homestead,  when,  668L 
damages  against,  for  wrongful  levj',  668. 
trespass  lies  against,  for  wrongful  levy,  859. 

not  against,  when,  860. 
may  be  directed  by  mandamus,  863-4. 
has  knowledge  of  homestead,  731. 
charged  with  knowledge,  when,  781. 
not  liable  for  proceeds,  when,  758. 
must  pay  proceeds  to  debtoi',  when,  780. 
must  allovt'  debtor  opportunity  to  claim,  779. 
Uable  criminally,  when,  780, 


loos  INDEX. 

OFFICER  —  continued. 

not  relieved  from  duty  by  indemnity  bond,  780. 

liable  to  have  goods  taken  from  him  by  replevin,  when,  781. 

entitled  to  defend  his  acts,  782,  857. 

ORDINARY  DEBT  (see  Debt). 

ORPHANS  (see  Children's  Homestead). 

OWNERSHIP— 

a  condition  of  homestead,  103-8. 

by  what  title,  103. 

ruling  in  Alabama,  105. 

character  of,  108. 

of  the  site  of  the  dwelling-house  in  Illinois,  108. 

by  leasehold,  113,  148. 

of  estate  for  years,  109. 

in  parcels,  115. 

by  several  titles,  115,  147-8. 

by  life  tenure,  116. 

appraised  as  if  in  fee.  117. 

by  equitable  title,  117,  121. 

in  equity  of  redemption,  119,  120. 

by  husband  and  wife,  121-2. 

by  husband  or  wife,  122-3. 

not  affected  by  liens,  when,  126. 

not  dependent  on  price  paid,  when,  127. 

payment  essential  to,  354-7. 
.  as  to  creditors,  110. 

without  title  except  right  of  occupancy,  111. 

possessory  right,  112. 

not  affected  by  easement,  113. 
servitude,  113. 

as  to  growing  crops,  113.    See  Crops. 

conveyed  by  husband  to  wife,  123. 

of  married  women,  secured  by  constitution  of  South  Carolina,  124 

assignable  interest,  124. 

must  be  valid,  126,  127. 

free  from  fraud,  126-130. 

incumbered,  127. 

not  by  co-tenancy,  131-4. 

PARTITION  (see  Pleading  and  Practice;   Heirs;   Children's  Home- 
stead; Widow's  Homestead)  — 
not  while  minors  occupy,  596,  655. 
not  between  widow  and  minors,  656. 
on  remarriage  of  widow,  655. 

PARTNERSHIP  (see  Co-tenancy;  Partnership  Personalty)] — 
not  in  homestead,  143-5. 
after  dissolution,  144,  145. 
as  to  exemption  of  a  partnership  interest,  252. 
distinguished  from  co-tenancy,  861. 


INDKX.  1009 

PARTNERSHIP  PERSONALTY  — 
generally  not  exeniptible,  903-7. 
partner  does  not  own  firm  property,  *J04 
share  held  liable,  905. 

exeniptible,  907. 
consent  of  copartners,  908. 
when  judgment  against  a  partner,  909. 

PARTY  (see  Pleading  and  Practice). 

PATENT  (see  Federal  Homesteads). 

PENSION  FRpM  GOVERNMENT  — 
exempt  by  state  law,  where,  8137. 

with  its  accumulations,  837. 
must  inure  to  benefit  of  pensioner,  838. 

property  purchased  with,  exchanged  for  other  property,  838. 
invested  in  live  stock,  its  increase,  839. 
protected  in  transit  to  pensioner  by  act  of  congress,  840. 
after  payment  to  pensioner,  not  generally  exempt,  840. 

accumulitions  not  generally  exempt.  840. 
investment  of,  not  protected  by  act  of  congress,  841. 
whether  protected,  questioned,  841,  n. ;  842,  843. 
as  to  its  being  attachable  after  reception,  843. 
not  conferred  by  an  exemption  act,  843. 
relative  to  the  state  law  of  Iowa,  843. 
held  by  guardian  of  an  insane  woman,  845. 
as  to  the  pensioner's  benefit,  845,  846. 

PERSONAL  PROPERTY  (see  Chattel  ExemptionX 

PICTURES  — 

portraits  and  drawings  exempt,  819. 

oil  paintings,  etc.,  819. 

sometimes  treated  as  household  goods,  819. 

'•  familj'^  pictures,"  quere,  820. 

PLATTING  OF  HOMESTEAD  — 
in  general,  154-8. 

how  affecting  rural  homestead  on  extension  of  town,  155. 
not  always  essential  to  urban  homesteads,  156. 
must  precede  injunction,  when,  154,  158. 
by  oflficer,  before  sale,  156-7. 
when  the  law  is  merely  director}-,  215. 
when  rural  homesteads  are  brought  within  town  lines,  225. 

PLEADING  AND  PRACTICE  (see  Evidence;  Ejectment;  Injunction 
Segregation)  — 
ordinary  remedies,  681. 

pleading  necessary  to  save  homestead,  682-3, 
parties,  683-694. 

husband  and  wife,  083-7. 
64 


1010  INDEX. 

PLEADING  AND  PRACTICE  —  continued. 

parties,  wife,  in  ejectment,  685-6. 

in  foreclosure,  680-6. 

in  attachment,  685-6. 

as  sole  plaintiff,  687. 

by  bill  in  equity,  688, 
by  trespass  against  officer,  688. 
to  recover  homestead,  689. 
as  sole  defendant,  690-2. 
to  set  aside  default,  691. 
against  mechanic's  lien,  693. 
minor  children,  648,  693-4. 

to  have  homestead  set  off,  693. 
in  partition  proceedings,  647,  693. 
to  defend  against  suit  for  purchase-money,  694 
to  defend  against  damage  suit  by  widovp,  694 
widow,  695-6. 

to  recover  or  defend  her  homestead,  695. 
when  insane,  by  guardian,  696. 
application  for  homestead,  697-703. 
allegations  in,  697-700. 

of  family  headship,  697. 
of  ownership,  698. 
of  residence  in  the  state,  699. 
of  occupancy,  699. 
of  value,  701. 
describing  property,  700. 
in  litigation,  700. 

onus  on  claimant,  700,  713. 
probate  order  to  set  off  homestead,  703. 
removal  of  cause  to  higher  court,  703. 
probate  order  to  sell  homestead,  706-711. 
partition,  when  necessary,  706. 
co-tenancy  in  real  interests,  706. 
presumption  in  favor  of  probate  orders,  707. 
sale  to  pay  debts.  707,  713,  713. 
by  consent,  707,713,713. 
of  quitclaim  title  by  widow,  707,  712,  713. 
void,  in  insolvency  proceedings,  when,  708-9. 
by  which  purchaser  gets  good  title,  709. 
suit  by  administrator,  relative  to  creditors,  710-716. 

by  bill  in  equity,  710. 
mortgage  foreclosure,  relative  to,  714-733. 

when  husband  and  wife  are  mortgagors,  714 
when  adult  heirs  cannot  compel,  714. 
mortgage  redemption,  714. 

firs;  exhaustion  of  non-exempt  property,  715-717. 
ejectment,  717-8. 

after  sale  for  purchase-money,  717. 


INDEX. 

PLEADING  AND  PRACTICE  — continued, 
ejectment  of  widow,  holding  in  fee,  717. 
of  defendant  holding  under  contract  to  purchase,  717. 
of  mortgagor,  718. 

of  private  purchaser  by  a  purchaser  at  public  sale,  718. 
pleading  homestead  against  foreclosure,  718,  719. 
when  not  estopped,  719. 
facts  to  excuse  omissions,  719. 
receiver  in  foreclosure,  719. 

when  executor  must  turn  over  to,  720. 
marshaling  liens,  720-3. 
surety,  722-3. 
wife  as,  722. 
on  collector's  bond,  723. 
guardian's  bond,  723. 
equity  rule  as  to  order  of  sale,  723-6. 
statutory  rule  as  to  order  of  sale,  726-9. 
incumbrances,  724-6. 

motion  by  debtor,  as  to,  669. 
schedule  to  prevent  execution  of  homestead,  728L 
proof  of  the  existence  of  other  property,  727. 
lack  of  bid  deemed  exhaustion,  727. 
claiming  exemption  before  execution  sale,  729-733. 
as  to  laches,  729, 

indivisible  homestead,  730. 
sale  void,  when,  731. 
officer's  knowledge,  731. 
ji'.dgmeut  when  no  lien  on  homestead,  733. 
when  proceeds  of  sale  exempt,  732. 
tenant  at  will,  736. 

by  sufferance,  737. 
execution,  as  to  occupancy,  738-741. 
when  title  not  involved,  739. 
of  husband's  separate  interest,  739. 

writ  of,  and  advertisement,  show  what  title  offered,  740l 
alias,  783. 
pleading  in  attachment  suits,  741-9. 
abandonment  by  giving  quitclaim  title,  741. 
abandoned  homestead  may  be  attached,  743. 
claiming  by  separate  suit  after  attachment  judgment,  748. 
when  recording  is  necessary  to  the  attachment  lien,  744 
attachment  is  a  limited  proceeding i?i  rem,  745. 
when  allegations  necessary,  in  answer,  745. 
judgment  bars  further  litigation,  when,  747. 
effect  of  not  pleading,  746-9. 
rulings  on  evidence,  749-753. 

trespass  against  officer  and  judgment  creditor,  756. 
claim  necessary  before  suit  for  conversion,  778. 
allegation  that  sheriff  converted  property  to  his  own  use,  781. 


1011 


1012  INDKX. 

PLEADING  AND  PRACTICE  — continued 

pleading  waiver.  556. 

proceeding  in  equity  and  not  by  execution,  when,  147. 
in  rem,  18,  329,  893. 
POLICY  OF  THE  LAW  (see  Construction)  — 

in  homestead  legislation  generally,  3-5. 

to  conserve  family  homes,  3-5. 

incidentally  charitable,  3-5. 

courts  no  right  to  any  judicial  policy,  25,  36-8. 
to  become  almoners  of  bounties,  28. 

how  far  to  be  considered,  33. 

when  the  sense  of  the  statute  accords  with,  34 

relative  to  family,  as  to  torts  of  the  husband,  61. 

as  to  charity,  36,  87,  206,  482. 

to  pi-otect  families  —  debtor's  benefit  incidental,  95. 

in  chattel  exemption,  764. 

in  federal  homestead  legislation,  924 

in  constru(;tion,  33,  105. 

POSSESSION  BY  HOMESTEAD  HOLDER  — 

exclusive,  126,  131,  134 

necessary  to  dedication,  131,  135. 
notice,  132. 
PRESUMPTION  (see  Evidence). 

PRINCIPAL  USE,  182-191. 

as  a  test  of  homestead  right,  183,  235. 

as  to  renting,  183,  186,  187. 

of  a  hotel,  183. 

with  intent,  etc.,  190. 

as  evidence  of  homestead  right,  191. 

keeping  for  future  homestead  use,  191. 

uses  as  indicia,  251. 

PRINCIPLES  — 

leading,  1-21. 

summary  of,  21. 
PRINTING  PRESS  (see  Tools). 

PRIVILEGED  DEBTS  (see  Debt  ;  Liabilities  op  Homestead). 
PROBATE  COURT  (see  Pleading  and  Practice)  — 

when  jurisdiction  original  as  to  homestead,  626-8. 

orders,  favored  by  presumption,  707. 

PROCEEDINGS  (see  Pleading  and  Practice). 

PROCEEDS  — 

of  homestead  to  be  invested  in  new  home,  215,  216,  291,  438-443. 
held  not  exempt,  if  to  be  taken  out  of  the  state,  291. 

used  for  ordinary  purposes,  317. 

held  for  general  purposes,  443-4 
not  attachable,  317. 

unless  excessive,  317. 


INDEX.  1013 

PROMISSORY  NOTE  — 
for  purchase-money,  334 

in  third  hands,  339,  446-450. 

assigned,  347. 

how  hen  waived,  347. 

novated,  348. 
selected  by  widow  as  personalty,  828,  n. 
set-off  against.  829,  833. 
waiving  exemption,  869. 
waiver  in,  to  be  pleaded,  557. 

PURCHASE  (see  Purchase-money)  — 

defined.  106. 

on  credit,  106. 

by  verbal  contract,  118. 
PURCHASE-MONEY  — 

nature  of,  331. 

equitable  lien  for,  332-3. 

when  without  lien,  333. 

obligation  for,  334-6. 

notes  for,  in  third  hands.  334. 

vendor's  lien,  335. 

borrowed  money,  as,  337. 

distinguished  from  borrowed  money,  341-347. 

secured  by  mortgage,  352-354. 
unrecorded,  354. 

relative  to  subrogation,  337. 
co-purchasers,  356. 

claim  for,  no  defense  against,  357. 

returned  to  vendee  on  failure  of  title,  357. 

sale  for,  cannot  be  shown,  when,  728. 
PURCHASE-MONEY  FOR  CHATTELS  — 

chattels  not  subject  to  lien  for,  when,  910. 
not  exempt,  910-913. 

promissory  note  for,  911. 

borrowed,  911. 

relative  to  general  exemption  statutes,  913. 

when  claimed  against  mortgage,  913. 
QUANTITATIVE  LIMIT  — 

not  in  all  the  states,  208. 

with  monetary  restriction,  208,  209. 

to  a  lot  or  lots  in  town  or  certain  acreage  in  the  country,  209. 

impracticable,  when,  209. 

effect  of  increase  of  value  on  quantity,  209,  216,  217. 
as  to  execution,  217.  218. 
having  no  quantitative  limit,  211,  212. 

to  a  lot,  without  further  designation,  215 

without  monetary  restriction,  221-3. 

in  town  but  not  in  the  country,  221-3. 


1014  INDEX. 

QUANTITATIVE  LIMIT  —  continued, 
when  exceeded,  223-4. 

the  excess  liable,  224. 
how  affected  by  the  extension  of  town  lines,  224-7. 
of  rural  homestead  brought  withiu  town  lines,  224-5. 

as  to  forced  sale,  227. 
governed  by  the  law  in  foi-ce  when  debt  contracted,  827. 

when  surety  signed,  228. 

QUARANTINE  — 

right  of  widow,  616. 

QUASI-ESTATE  OF  HOMESTEAD  — 
resemblance  to  an  estate,  5. 
compared  with  estates,  256-7. 
defeasible  but  indeterminate,  258. 
not  disposable  by  will,  258. 
susceptible  of  enjoyment,  259. 
as  to  dower,  260. 

bestowed  by  the  owner  of  real  estate,  16. 
an  incumbrance,  when,  724. 

RAILROAD  LAND-GRANTS  — 

right  of  settlers  relative  to,  942-5. 

RECEIVER  — 

in  mortgage  foreclosure,  when,  719. 

may  be  appointed,  when,  720. 

executor  must  turn  over  to,  when,  720. 

in  an  action  for  forcible  detaiuei^  720. 

appointment  of,  should  be  refused,  when,  720. 

executor  should  turn  over  to,  when,  720. 

appointment  of,  necessary  when,  858. 

cannot  interfere,  when,  858. 

judgment  does  not  vest  in,  when,  858. 

appointed  on  court's  own  motion,  in  Georgia,  when,  859,  n. 

of  public  lands,  932. 

RECORDING  — 

of  conveyance,  161. 

in  Homestead  Book,  161. 

on  margin  of  title,  161,  170. 

to  show  acceptance  of  conditions,  168-9. 

requisites,  169-174. 

on  exchange  of  homesteads,  171. 

when  directory,  172,  178. 

effect  as  to  existing  liens,  174 

REDEMPTION  — 
from  tax  sale,  330. 
from  mortgage,  when,  714,  715. 
equity  of,  sold,  715. 


INDEX.  1015 

REMEDIES  (see  Attachment;  Bill  in  Equity;  Damages;  Ejectment; 
Execution;  Garnishment  in  Foreign  Jurisdiction;  Injunction; 
Judgment;  Pleading  and  Practice. 

REMEDIES  FOR  WRONGFUL  LEVY  — 

trespass  against  officer  and  judgment  creditor,  756. 
replevin;  debtor  may,  when,  781. 

not,  when,  863. 
concurrent,  857. 
action  for  damages,  859. 

for  conversion,  860. 

not  for  seizing  and  selling  things  exemptible  merely,  860. 
judgment  for  damages,  863. 

RENTS  — 

of  homestead  of  decedent,  342. 

not  liable  for  his  debts,  when,  243. 
to  surviving  spouse,  590. 
to  minors,  650. 

not  subject  to  exemption,  when,  910. 
of  property  dedicated  to  public  use,  910. 

REPLEVIN  (see  Remedies  for  Wrongful  Levy). 
RESIDENCE  — 

of  family,  qualified  by  statute,  is  technical  homestead,  1-3. 

in  the  homestead,  essential,  175. 
stated  in  the  declaration,  176. 
in  the  state  necessarj^  560. 

exceptional  cases,  561. 
effect  of  removal  to  another  state,  561. 
citizenship  necessary  to  homestead,  in  some  states,  62,  97. 
wife  of  non-resident  cannot  claim  homestead,  when,  64. 
homestead  accorded  to  every  resident,  where,  65,  81. 
non-resident  acquiring  homestead,  when,  288. 

heirs  take  homestead,  when,  447. 

has  chattel  exemption,  when,  774,  900. 
reason  against  it,  901. 
resident  wife  of  a  non-resident  may  claim,  when,  774. 

bachelor  may  claim,  where,  81-2. 
in  the  state  to  be  alleged,  in  application  for  homestead,  when,  699. 
in  the  county,  699. 
presumption  of,  699. 

when  applicant  for  exemption  must  prove  his  residence  in  the  state,  775. 
as  to  garnishment  in  another  state,  888-892. 
RESTRAINT  OF  ALIENATION  — 
spirit  of,  353. 

accepted  by  homestead  owner,  370. 
not  universally  required,  371,  373. 
disclaimer  of  exemption  right,  372. 

no  restraint  when  exemption  right  has  not  been  acquired,  372. 
not  confined  to  forced  sale,  372. 


1016  INDEX. 

RESTRAINT  OF  ALIENATION  —  continued, 
not  implied,  when,  373. 

by  mortgage  but  not  by  sale,  in  Louisiana,  373. 
by  eithei-  mortgage  or  sale,  generally,  373. 
aa  to  coercive  process,  in  Kentucky,  373,  n. 

creditors  of  decedent  may  sell  homestead,  subject  to  widow  and  chil- 
dren's occupancy,  in  Kentucky.  373,  n. 
husband  and  wife  may  sell  jointly,  373. 
husband  alone  cannot  sell  unj^lutted  tract,  in  Iowa,  374. 
renunciation  of  homestead  not  in  deed,  when,  374. 
as  to  purchaser,  374. 
as  to  third  possessor,  374. 

as  to  lions  and  other  liabilities,  in  purchaser's  hands,  374, 
any  reservation  should  be  expressed,  374. 
consent  of  wife  need  not  be  in  writing,  when,  374. 
to  right  of  way,  374. 

proved  by  parol,  375. 
does  not  make  her  surety  for  husband,  375. 
approval  of  court  to  sale,  in  Georgia,  375. 
trust  deed  by  husband  and  wife,  375. 
enforced  after  husband's  death,  376. 

as  to  purchaser,  376. 
of  wife's  life  estate,  376. 
enforceable  against  homestead,  376. 
renewed  by  husband  alone,  376. 
mortgage  of  homestead  by  husband  and  wife,  377. 
not  to  be  enlarged  or  renewed  by  him,  877. 
as  to  antecedent  debt,  377. 
to  secure  purchase-money,  378. 
after  abandonment,  378. 
relative  to  leasing  homestead,  379. 
not  for  creditors'  benefit,  379. 
relative  to  rights  of  widow  and  minor  heirs,  379. 
as  to  lien  of  judgment,  379. 
assent  of  husband  and  wife  contemporaneous,  380. 

by  both  signing  the  de.ed,  380. 
invalid  trust  deed  of  husband  not  validated  by  wife's  later  deed,  380. 
by  mortgage  to  secure  joint  note,  380. 
wife  alone  not  liable,  when,  380. 
parties  defendant,  380. 

claim  against  administrator,  as  to  prior  demand,  380,  n. 
by  mortgage  to  wife,  381. 
mortgage,  trust  deed,  etc.,  of  homestead,  inhibited  in  Texas,  381. 

not  to  single  persons,  381. 
of  homestead,  being  husband's  separate  property,  383. 

wife's  separate  property,  383. 
as  to  note  for  borrowed  money,  383. 
as  to  wife's  right,  when  mortgage  not  witnessed,  382. 
aa  to  waiver,  after  husband's  death,  383. 


INDEX. 


1017 


RESTRAINT  OF  ALIENATION  —  contintied. 

as  to  mortgage  by  husband  when  wife  lives  apart,  383. 
as  to  husband  acting  alone,  383. 

relative  to  fixtures,  383. 
husband's  sole  sale  or  mortgage  genei"9.11y  null,  384 

of  property  taken  in  excliange  for  homestead,  384. 
court  sale  of  widow's  homestead,  in  Georgia,  384,  n. 
of  tract  from  which  homestead  is  not  carved  (in  Iowa),  385. 
not  applicable  as  to  old,  when  new  homestead  has  been  acquired,  885. 

to  unmarried  person?,  385. 
as  to  void  mortgage,  with  husband's  connivance,  385. 
as  to  notes  held  for  new  homestead,  385. 
as  to  lease  without  wife's  consent,  385. 
except  as  to  part,  386. 

of  ground,  with  building  mortgaged,  386. 
as  to  expropriation,  386. 

right  of  way,  386. 

assignment  of  school  certificate  under  which  homestead  was  held, 
387. 
sales  subsequently  validated,  387. 
bond  to  convey,  387,  388. 

wife's  death  does  not  cure  want  of  her  signature  to  deed,  388. 
imperfect  sale  cannot  be  ratified,  when,  388. 
unoccupied  realty,  as  to  mortgage,  388. 
wife's  right,  389-391. 
estoppel,  392-5. 

sale  by  husband  to  wife,  395-8. 
incumbrances,  398-401. 
interests  of  non-owning  beneficiaries,  401-3, 
privileged  debts,  403-4. 
excess  of  homestead,  405-410. 

first  exhausted,  410-415. 
sale  of  interests,  414-416. 
assignment,  417,  418. 
construction  of  statute,  419-423, 
wife's  acknowledgment,  423-429. 
wife's  joinder,  429-433. 
as  to  leasing,  433-5. 

exchange  of  homesteads,  435-8. 

proceeds  for  re-investment  in  new  homestead,  438-443. 
held  for  general  purposes,  443-4. 
not  a  corollary  of  homestead  exemption,  497. 
RESTRAINT  OF  TESTAMENTARY  DISPOSITION—^ 
by  implication,  446. 
by  express  inhibition,  in  statutes,  451,  456. 

in  constitutions,  461. 
devise  is  not  alienation,  447-450,  461-3. 
strictly  construed,  447,  450. 
homestead  excepted  from  devises,  457. 


1018  INDEX. 

RESTRAINT  OF  TESTAMENTARY  DISPOSITION  —  continued, 
as  to  waiver  by  will,  451-3. 
witli  respect  to  alienating  by  deed,  453. 
after  divorce,  458. 
contravening  the  statute,  460. 
as  to  bequest  and  dower,  465. 
correlative  with  exemption,  when,  476. 
upon  others  than  debtors,  483. 
not  applicable,  when,  493. 
devise  of  homestead  a  nullity,  589. 
spirit  of  exemption  laws,  as  to  wills,  465. 
right  of  surviving  spouse  adverse  to  wills,  446-7,  460. 
divorced  wife  may  .sue  to  set  will  aside,  for  children's  benefit,  458, 
not  her  own,  459. 

RETROACTION  (see  Intention  to  Occupy)  — 

not  created  or  recognized  by  homestead  statutes,  199. 

favored  by  some  decisions,  199,  800-1. 

contrary  to  the  law  of  notice,  800. 

of  occupancy,  to  the  filing  of  the  deed,  801. 

denied  in  Iowa,  803. 
to  date  of  purchase  of  land,  303-3. 
protecting  building  material,  303. 
must  have  statutory  support,  384 

REVERSION  (see  Sale  with  Homestead  Use  Reserved)  — 
sale  of,  488. 
as  to  creditors,  536. 

RIGHT  OF  WAY  — 

consent  of  wife  necessary,  when,  374. 

proved  by  parol,  375. 
when  husband  alone  may  grant,  386. 
gi-anted  by  homestead  settler,  when,  944. 
by  expropriation  of  federal  homestead,  944,  945. 
settler,  after  entry,  entitled  to  compensation,  945. 
has  statutory  right  to  convey  right  of  way,  945. 
is  an  easement  of  perpetual  use,  945. 
wife's  consent,  when  necessary,  how  proved,  946. 
not  included  in  the  right  to  lease,  946. 
granted  by  the  United  States,  946. 

RURAL  HOMESTEAD  — 

limited  in  quantity  and  value,  308-210. 

quantity  only,  331. 

value  only,  810-316. 
extension  of  plantation  acreage,  333. 

when  town  lines  are  extended  so  as  to  include,  155-6,  223-7. 
when  (juantity  below  the  maximum,  231. 
cannot  exceed  the  maximum,  231. 


INDEX.  1019 

SALE  OF  HOMESTEAD  (see  Sale  with  Homestead  Use  Resebved; 
Restraint  of  Alienation)  — 
by  husband  and  wife,  373. 
with  exemption  right  expressly  renounced,  374, 

subsequently  abandoned,  387-9. 
relative  to  wife's  rights,  389-393. 
by  authorization,  450. 
on  credit,  537. 
by  probate  order,  to  pay  debts,  707. 

by  consent,  707. 
under  right  of  eminent  domain,  386. 
by  sheriff,  not  void  when,  715. 
set  aside  by  rule,  747. 
confirmed  by  court,  761. 

SALE  WITH  HOMESTEAD  USE  RESERVED  — 
by  owner  generally,  469. 
by  sole  deed,  473. 

of  fee,  with  life-estate  reserved,  474. 
by  express  stipulation,  475. 

by  solvent  owner  before  selection  of  homestead,  478. 
not  by  insolvent  debtor,  481. 
by  husband  and  wife,  484. 
by  execution,  486. 

relative  to  the  reversion,  488.  \ 

by  administrator,  490. 
not  during  homestead  occupancy,  493. 
summary  of  rules  relative  to,  497. 
of  the  excess  of  homestead,  535. 

SCHEDULE  OF  DEBTOR'S  PROPERTY  — 

to  prevent  execution  of  homestead,  when,  728. 
no  prescribed  form,  847. 
when  necessary,  848. 
omissions  in,  849. 
objections  to,  850,  855. 

not  making,  forfeits  exemption,  when,  854 
of  what  the  debtor  has  at  the  time  of  taking  his  oath,  854. 
thing  included  in  must  be  exhibited  to  appraisers,  856. 
furnished  to  officer,  860. 
accepted  by  him,  861. 

SEGREGATION  (see  Partition)  — 

when  two  homesteads  to  be  separated,  273. 

impracticable,  when,  664. 

when  part  of  property  is  not  exempt,  712,  756. 

by  officer,  when,  757. 

by  appraisers,  756. 

what  appraisers  must  do,  758. 

on  application  by  either  debtor  or  creditoi",  757. 


1020  INDEX. 

SELECTION  — 

relative  to  two  tracts  of  land,  149-154. 

contiguous  pieces,  149. 
by  marking  bounds,  161. 
by  i)latting,  103. 
by  husband  or  wife,  161. 
before  sale  wlien  execution  is  pending,  163. 
when  more  than  the  homestead  is  levied  upon,  173. 
of  excessive  quantity.  213. 
as  to  form  of  land,  158-lGO. 

SHERIFF  (see  Officer). 

SIGNATURE  OF  THE  WIFE  TO  HOMESTEAD  DEED  — 
must  be  her  free  act,  423. 
not  necessary  to  the  conveyance,  when,  428. 
when  obtained  by  fraud,  423,  425. 

to  pay  antecedent  debt,  432. 
followed  by  delivery  of  deed,  424. 
without  reading  the  instrument,  426. 
when  too  late,  426. 

when  the  husband  alone  has  previously  sold,  427. 
without  threat,  must  be  certified,  428. 
after  examination  apart  from  husband,  428. 
when  her  name  is  not  in  the  instrument,  428. 
for  releasement  of  her  dower  interest,  431. 
requisite  only  when  she  has  homestead  right,  433. 

SOLDIER'S  AND  SAILOR'S  HOMESTEADS  (see  Federal  Homesteads). 

STATES  — 

as  creditors,  12. 

as  governments,  13. 

affected  by  homestead  and  exemption  laws,  14. 

STATUS  — 

of  members  of  family,  7. 

STOCK  IN  TRADE  — 

exempt  to  a  stated  limit,  811t815. 
to  a  resident,  in  Colorado,  812. 
in  Wisconsin,  812. 
other  states,  812. 
of  merchant,  813-5. 

whether  exempt,  813. 
exempt  in  Colorado  and  Wisconsin,  813. 
not  exempt  in  Kansas  and  Minnesota,  814 
made  by  the  owner  and  for  sale,  exempt,  814. 
mingled,  not  exempt,  814. 
exchanged,  or  sold  and  i-esupplied,  814. 
of  lawful  business,  815. 
must  be  selected  and  claimed,  815. 


INDEX.  1021 

SUBROGATION  - 

of  the  lender  of  purchase-money,  337-340. 

when  without  lien.  338. 

none,  when  cliattel  mortgage  is  given,  340. 
SUPPORT  OF  FAMILY  — 

propertj'.  used  for,  has  been  held  exempt,  240. 

crops,  whether  exempt  for  the,  241. 

SURETY  — 

right  of,  against  his  principal,  286. 
bound  from  date  of  signing,  288. 
on  curator's  bond,  289. 

collector's  boud,  722. 

guardian's  bond,  723. 
wife  as,  722. 
SURVIVING  SPOUSE  — 

relative  to  wills,  446-7,  460-1. 

takes  by  descent,  461. 

right  to  hold  until  legal  disposition,  589. 

cannot  change  homestead  meanwhile,  590. 

entitled  to  rents,  590. 

in  place  of  deceased  owner,  262. 

widow  as,  322. 

widow,  no  estate  conveyable,  when,  590. 

widower's  right,  when  implied,  591. 

distributive  share  of  decedent's  estate,  592. 

election,  592-4,  620. 

widow  inheriting,  593. 

children  inheriting,  593,  595. 

cannot  sell,  when,  596. 

wife  may  sue  as  to  homestead,  when,  596. 

has  estate  in  homestead,  when,  597. 
as  to  payment  of  community  debts,  597. 
widower  may  sell  under  statute,  598. 
title  vested  in,  when,  598,  600. 
riglits  of,  in  separate  property,  600. 

as  to  mortgage,  601. 
takes  by  descent,  602. 
transmits  to  his  or  her  heirs,  603. 

when  dependent  on  solvency  of  decedent's  estate,  603,  619,  63L 
taking  by  curtesy,  603,  605. 
relative  to  a  second  wife,  604. 
when  holding  for  the  children,  606, 
rights  by  reservation  in  deed  of  sale,  607. 

TAX  (see  Liabilities  of  Homestead)  — 
not  subject  to  exemption,  910. 
as  debts,  327. 
bearing  lien,  328-9. 
sale,  328. 
reason  for  non-exemption,  328. 


1022  INDEX. 

TAX  —  continued. 

collectoi-  defaulting,  330. 
redemption,  330. 

TENANT  — 

in  common,  181-134. 

widow  and  children  as,  634 
at  will,  147. 

cannot  assign,  736. 
by  sufiferance,  737. 
THINGS  EXEMPT  (see  Chattel  Exemption). 

TITLE  OF  HOMESTEAD  — 
not  conferred  by  law,  102. 
qualified,  103,  270. 
character  of,  108. 
of  husband  and  wife,  120-130.  • 
assignable,  124. 
fraudulent,  126. 
void,  126. 
clouded,  289. 

relative  to  the  grantor,  355. 
quitclaim,  707. 
of  purchaser  when  homestead  occupancy  is  reserved,  740. 

TOOLS  — 

implements  generally,  796. 

illustrated  by  examples  from  several  states,  797,  n. 

used  in  the  owner's  avocation,  797. 

when  a  carriage,  a  horse,  etc.,  may  be  a  tool,  797. 

specified  implements,  797. 

of  a  farmer  or  artisan,  797,  798,  806. 

cumulative  provisions,  798. 

of  dentist,  799. 

of  photographer,  799. 

office  furniture,  as,  799. 

necessary  to  business,  800. 

by  Kansas  statute,  800. 
not  absolutely  necessary,  in  Michigan,  805. 
abstracts  of  titles  held  to  be  tools,  800. 
various  articles,  800,  n. 
not  law  books,  800. 

merchant's  outfit,  800. 

stamping  blocks,  800. 
of  a  corporation,  802. 
machines  as  tools,  801-2. 
printing  presses,  etc.,  as  tools,  802-3. 
dependent  on  ownership,  803. 

material,  in  Texas,  803. 

process  exempt  by  statute  to  certain  limit,  803, 
in  Michigan,  803. 
in  Mississippi,  803. 


INDEX.  1023 

TORT  (see  Actions  ex  Delicto  ;  Liabilities  of  Homestead)  — 
creates  no  liability  of  homestead,  when,  '622-d, 
by  slander,  324. 
no  debt  for,  until  judgment,  325. 

TOWN  RESIDENCE  (see  Urban  Homestead). 

TRESPASS  (see  Officer  ;  Conversion)  — 
for  seizing  exempt  property,  859. 
will  lie  against  officer,  when,  860. 
not  necessarily  intentional,  863. 

TROVER  (see  Officer)  — 

when  it  will  lie,  860. 
TRUST  — 

resulting,  338-9. 
TRUST  DEED  (see  Deed  of  Trust). 
TRUSTEE  — 

buying  homestead  with  borrowed  money,  338. 
TRUST  ESTATE  — 

of  family  in  dedicated  homestead,  in  Georgia,  270. 

members  of  family  as  ce.stui  que  trusts,  270. 

as  to  dower,  270. 

UNMARRIED  BENEFICIARY  — 

single  woman,  as  head  of  a  family,  79. 

man,  as  head  of  a  family,  80. 

son,  supporting  his  mother,  80. 

guardian  of  minors,  80. 

with  illegal  family,  80,  81. 

not  restrained  as  to  alienation,  81. 

resident  of  the  state,  82. 

supporter  of  dependents.  83,  97. 

childless  widower  or  widow,  of  homestead  already  acquired,  82-87. 

divorced  person,  when,  84,  87.     See  DivoECE. 

rule  in  Texas,  87-9,  n. 
effect  of  marriage  after  levy,  101. 

before  judgment,  281. 

URBAN  HOMESTEADS  — 

limited  in  quantity  and  value,  208-210. 

quantity  decreases,  when,  209. 

value  only,  210-216. 

to  one  lot,  214-216. 
acre,  221. 

as  to  ground  site  only,  when,  222. 
when  less  than  allowed  quantity,  221. 

no  money  test,  221, 
improvements  not  estimated,  when,  222, 
of  lowest  practicable  area,  yet  excessive  in  value,  223. 

not  exempt,  in  Alabama,  when,  223. 
not  extended  by  building  a  business  house,  148L 


1024  INDEX. 

USE  (see  Occupancy;  Sale  of  Homestead  with  Use  Reserved)- 
principal,  182-4. 

is  the  test  of  homestead,  183. 
subordinate,  18r)-188. 

as  shop  of  liouseholder,  185. 

storing  furniture,  185. 
as  indicia  of  homestead  right,  251-4. 
as  a  liotel,  183-4. 

in  California,  183. 

in  Michigan,  184. 
in  contravention  of  law,  184,  188. 
for  business  purposes,  184,  188. 
of  appurtenances,  186. 
by  renting  to  others,  186,  188. 
by  cultivation,  187. 

by  delaying  to  move,  after  exchange  of  homesteads,  187. 
must  be  with  intent,  190. 
of  building  lot,  indicative  of  intent,  191. 
kept  for  use,  191,  192. 

VALUE  (see  Appraisement;  Monetary  Limit). 

VEHICLES  — 

exemption  of  buggies,  803. 

carts,  804. 

truck  wagons  excepted,  804. 

hearse,  804. 

in  "Wisconsin,  804. 

wagon,  under  the  term  team,  in  New  York,  805. 

wagons  of  teamsters  in  several  states,  805. 

peddler's  wagon,  805, 

bachelor's  buckboard  in  Colorado,  812. 

VENDOR'S  PRIVILEGE  (see  Purchase-money). 

WAGES  — 

usually  exempted  for  last  month  or  more,  823. 

of  many  avocations,  824.  ^ 

of  persons  working  under  contract,  824. 

of  seamen  not  exempt  in  some  states,  824,  n. 

as  to  the  character  of  the  service,  824,  n. 

not  same  as  earnings,  825. 

salary,  826. 
collectible  as  against  things  generally  exempt,  827. 
of  commorants,  827,  n. 
for  team,  dray,  etc.,  827,  n. 
of  railroad  employees,  889. 
garnishment  of  in  foreign  state,  890. 

sending  to  another  state  for  garnishment  there,  criminal,  889,  n. 
taking  to  another  state  for  garnishment,  891. 
action  for  garnishment  abroad,  892. 
exemption  of,  an  incident  of  the  debt,  893. 
wage-earner's  remedies,  895-900. 


INDEX.  1G20 

WAIVER  — 

in  note,  of  lien  for  purchase-money,  347. 
prior  to  assignment,  452. 
inalienable  rights,  539. 

remedies,  540. 
when  against  public  policy,  540. 
by  pre-agreement,  540. 
general,  541. 

of  chattel  exemption,  541. 
of  lien  for  purchase-money,  552. 
by  post-nuptial  agreement,  542. 
of  part  of  homestead,  542. 
of  inchoate  rights,  543. 
analogous  to  quitclaim,  when,  544. 
as  to  specific  property,  544. 
of  rights  in  futuro,  544. 
of  dower,  544. 
not  of  others'  rights,  545. 
not  by  widow,  of  children's  rights,  546. 
by  mortgage  or  trust  deed,  546,  551. 
in  promissory  note,  556. 

must  be  pleaded,  557. 
optional,  547. 
special,  548. 
partial,  549. 
absolute,  549. 

as  to  children's  rights,  548. 
as  to  a  particular  debt,  548. 
as  to  usury,  553. 
release  of,  554. 
how  pleaded,  556. 

in  promissory  note  or  bond,  must  be  pleaded,  557. 
in  ante-nuptial  contract,  612. 
by  not  resorting  to  mandamus,  868. 
in  promissory  note,  869,  885. 
not,  when  no  notice,  870. 
in  favor  of  senior  lien-holder,  871. 

effect  on  junior,  872. 
relative  to  mortgage,  872-874. 

in  attachment,  by  not  claiming  before  judgment,  882. 
conventional,  885. 
WARRANTY  — 

by  husband  and  wife  binds  both,  432. 

WEARING  APPAREL  (see  Chattel  Exemption). 

WIDOW  (see  Surviving  Spouse;  Widow's  Homestead)  — 
acquiring  homestead,  75. 
from  what  estate,  77. 
may  waive  her  right  without  impairing  that  of  her  children,  546, 
65 


1026  INDEX. 

WIDOW  —  continued. 

how  affected  by  her  remarriage,  585-6,  599. 

long  absence,  586. 
has  right  to  acquits  and  gains,  when,  595. 
nature  of  her  homestead,  611. 
may  waive  in  ante-nuptial  contract,  613. 
relative  to  her  dower  and  homestead,  614-618. 

occupancy,  631-5. 

alienation,  628. 
relative  to  heirs  of  deceased  husband,  625-630. 

mortgage  by  her  and  administrator  of  estate,  633. 
necessitous,  636,  641, 

right  not  dependent  on  her  having  children,  641. 
petitioning  for  allotment  of  homestead,  636-9. 
may  sue  for  damages,  when,  649. 
support  of,  788,  790,  856. 
exemption  for,  by  probate  court,  789. 
not  guilty  of  laches,  when,  790. 

WIDOW'S  HOMESTEAD  (see  Rights  of  SuRvrvTNa  Spouse)- 
of  exceptional  definition,  3,  611. 
relative  to  dower,  612. 

ante-nuptial  contract,  612. 

public  policy,  613. 
when  compatible  with  her  dower,  614 
allotted  on  husband's  death,  615. 
how  differing  from  dower,  615. 
not  alienable  by  her,  616. 

transferable  from  one  property  to  another,  617. 
as  to  subrogation,  618. 
when  incompatible  with  dower,  618. 
when  dependent  on  insolvency  of  decedent's  estate,  619. 

election,  618,  620. 
lost  by  remarriage,  when,  631. 
as  to  her  occupancy,  621. 

as  a  condition,  623. 
as  to  recovery  by  writ  of  entry,  633. 
held  by  widow  and  heirs,  in  common,  684 
relative  to  assignment  of  right  of  heirs,  625. 

partition,  626. 

jurisdiction  of  probate  court,  627. 

administrator  of  indivisible  estate,  628, 

inheritance,  629. 

alienation,  630. 

intestate  estate,  631. 

ejectment,  633. 

usufruct,  633. 

mortgage,  633. 

other  realty  or  money,  in  lieu  of,  634 

bond  and  security,  635. 


INDEX,  1027 

WIDOWS  HOMESTEAD  — continued. 

relative  to  necessity,  636.  \ 

contest  of  petition  for,  636. 
as  to  title,  637. 
as  to  debts,  638. 
purchaser  by  warranted  title,  639. 
widow  as  trustee  for  minors,  640. 
children,  641. 
liens  and  equities,  642. 
WIFE  (see  Husband  and  Wife)  — 

cannot  oust  her  husband  from  homestead  owned  by  her,  46. 
has  no  vested  right,  when,  261. 
may  waive  dower,  544. 

how  affected  by  husband's  abandonment  of  homestead,  582. 
sale  of  homestead,  582. 
change  of  domicile,  582. 
may  have  her  declaration  used  against  her,  when,  750. 
entitled  to  writ  of  entry,  when,  690. 

WIFE'S  JOINDER  — 
in  general,  429-433. 

WILL  (see  Restraint  of  Testamentary  Disposition)  — 
not  a  conveyance,  449,  462. 
relative  to  a  deed,  453. 
must  accord  with  statute,  460. 
consistent  with  homestead  right,  when,  461. 
subject  to  election,  when,  463,  465. 
renounced,  464. 

relative  to  the  spirit  of  the  laws,  465, 
by  a  married  woman,  467. 


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